THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


LAW  LTBRAKT 


Of  elementary  treatises  on  all  the  principal  subjects  of  the  law.     The 
special  features  of  these  books  are  as  follows: 

1.  (^  succinct  efafcmenf  of  fearing  principfes  in  6facft; 

feffcr  f^pc. 

2.  (^  more  crfen^e^  commcnfarg,  cfuci^afing  f^e  principfes. 
3-  (Uotce  an^  aut^orittce. 

Publifhcd  In  regular  octavo  foim.  and  sold  at  the  uniform  price  of 

53.75  V^^  tjofume,  incfu^ing  ^efttjerg. 


A' or  ton  on  Bills  and  N^otes.      (sd  Edition.  ) 
Clark's   Critninal  Law. 

Shipnian's  Cotnmon-La^c  Pleadni'^       (2d  Edition  ) 
Clark  on    Contracts. 

Black's   Constitutional  Laiv.       (2 a  Edition.) 
Better  on  Equity. 
Clark  on    Criminal  Procedure. 
Tiffany  on  Sates. 
Glenn's  International  Law. 
Jai:^^s;ard  on   Torts.      (2  vols.  ) 
Black  on  Interpretation  of  La7vs. 
Ha  e  071  Bailments  and  Carriers. 
Smith's  Elevientary  Law. 

14  Haie  on  Damages. 

1 5  Hopkins  on  Beat  Property. 

16.  Hale  on    Torts. 

17.  Tiffany  oti  Persons  and  Domestic  Relations. 

18.  Cios7vell  on  Executors  and  Administrators. 

19.  Clark  on    Corporations. 
20     Geori^e  on  Partriership. 

21.  Shipman  on   Equity   Pleading. 

22.  A'/cKeivey  on  Evidence. 
2\     Barrows  on   Nci^lis^ence. 


In  preparation:     Hana books  of  the  laiv  on  other  subjects 
to  be  announced  ,atcr. 


(|:u6ri6^2^  cin^  for  eafc  6g 

nreet  (pu6fie?tng  Co.,  ^i.  (pauf,  (UXinn. 

E810 


HANDBOOK 


ON    THE 


LAW  OF   DAMAGES 


BY 
WILLIAM    B.   HALE,   LL.  B. 

Author  of  "Bailments  and  Carriers" 


St.  Paul,  Minn. 
WEST  PUBLISHING   CO. 


Copyright,  1896, 

BY 

WEST  PUBLISHING  COMPANY. 


To 

MY    FATHER   AND    MOTHER 

This  book  is  affectionately  dedicated. 

(lil/* 


GG8i;j5 


PREFACE. 


TLo  nnthoi''s  object  in  the  present  work,  th;  preparation  of  which 
has  occupied  a  large  portion  of  his  time  and  attention  for  a  period 
of  nearly  two  years,  has  been  to  state,  explain,  and  illustrate  with 
elementary  clearness  and  accuracy  all  the  rules  and  principles 
governing  the  award  of  damages  in  civil  cases.  In  view  of  the 
limitations  of  space  in  a  one- volume  work,  it  has  been  thought 
best  to  give  the  greater  prominence  to  the  discussion  of  the  gen- 
eral principles  underlying  the  whole  subject,  letting  the  applica- 
tion of  those  principles  to  special  classes  of  eases  fall  into  a  sub- 
sidiary place.  Another  reason  for  this  arrangement  is  that  the 
book  is  intended  as  much  for  the  use  of  students  as  of  practition- 
ers, and  for  that  purpose  it  is  absolutely  essential  that  the  gen- 
eral and  controlling  principles  of  the  subject  should  be  fully  and 
clearly  explained.  These  are  few,  and  are  easily  grasped  when 
explained  in  logical  and  connected  order;  but  when  presented 
with  a  mass  of  details  applicable  only  to  the  special  case  under 
discussion  the  difficulties  of  the  subject  are  largely  increased. 
Much  confusion  has  also  been  caused  by  the  loose  and  unscientific 
use  of  terms  both  by  law  writers  and  in  judicial  opinions.  This 
is  notably  true  with  regard  to  nominal  damages.  That  subject 
has  been  made  almost  unintelligible  by  the  lack  of  consistency  and 
precision  in  the  use  of  the  terms  "wrong"  and  "damage."  The  no- 
tions embraced  in  these  words  have  been  very  carefully  analyzed 
in  the  first  chapter.  The  fundamental  nature  of  Icj^al  rights  and 
wrongs  has  been  looked  at  from  a  new  point  of  view;  and  while 
no  new  theories  are  advanced,  it  is  hoped  that  the  subject  has 
been  made  clearer.  The  question  of  damages  in  actions  for  in 
juries  to  land  by  the  erection  of  permanent  structures,  upon  which 
the  courts  are  almost  hopelessly  confused,  has  also  been  looked  at 
from  the  point  of  view  established  in  the  first  chapter,  and  it  is 

I.AW  DAM.  (V) 


VI  PREFACE. 

hoped  that  the  results  there  reached  will  be  helpful.  This  sys- 
tematic examination  of  the  principles  of  damages  with  reference 
to  fundamental  notions  has  been  followed  throughout  the  work. 
In  connection  with  each  principle  discussed,  numerous  illustra- 
tions have  been  given  to  show  its  various  applications.  By  means 
of  the  index  and  the  careful  analysis  of  the  subject  in  the  table  of 
contents  reference  to  any  desired  point  is  made  easy. 

In  conclusion,  the  author  wishes  to  acknowledge  his  very  sub- 
stantial obligation  to  Mr.  Tiffany's  excellent  treatises  on  "Sales'* 
and  "Death  by  Wrongful  Act."  Very  free  use  has  been  made  of 
these  works  in  the  chapters  on  those  subjects.  The  writer  also 
desires  to  express  his  thanks  and  appreciation  of  much  kind  as- 
sistance and  valuable  advice  from  Mr.  E.  A.  Jaggard. 
July  1st,  1896.  W.  B.  H. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES. 

Section  Page 

1.  Definition  and  Nature 1-3 

2.  The  Theory  of  Damages 3-7 

8.    Wrong  and  Damage 7-12 

4.  Lawful  and  Unlawful  Conduct 12 

5.  Authorized  Conduct   12-15 

6-7.           Forbidden  Conduct    15-19 

8-11.          Conduct  neither  Authorized  nor  Forbidden 19-22 

12.    Analysis  of  Legal  Wrongs 23 

13-14.    Classification  of  Damages 23 

CHAPTER  n. 

NOMINAL   DAMAGES. 

15-17.    Definition  and  General  Nature 24^31 

CHAPTER  III. 

COMPENSATORY  DAMAGES. 

18.    Definition    32-34 

19-20.    Proximate  and  Remote  Consequences  iu  General 34-35 

21.    Direct  and  Consequential  Losses 35 

22-23.          Direct   Losses    30-3S 

24-25.           Consequential  Losses   39 

26.  Proximate  and  Remote  Consequential  Losses 39—48 

27.  Consequential   Damages  for  Torts 48 

28.  Consequential  Damages  for  Breach  of  Contract 48-64 

29.  Avoidable   Consequences    64-70 

30.  The  Required  Certainty  of  Damages   70-72 

31.  Profits  or  Gains  Prevented 72-77 

LAW  DAM.  (vii) 


Vlll  TABLE    OF    CO.NTENl'S. 

Section  Page 

32.  Entirety  of  Demand 77-78 

33.  Time  to  Whicli  Compensation  may  be  Recovered— Past  nml 

Future  Losses  78-80 

34-35.    Elements   of   Compensation 86-87 

30.  Pecuniary  Losses   87-91 

37-38.  Physical  Pain  and  Inconvenience !)l-92 

39--t0.  Mental   Suffering    02-107 

41.  Aggravation  and  Mitigation  of  Damages 107-113 

42.  Reduction  of  Loss 114-117 

43.  Injuries  to  Limited  Interests llS-121 


CHAPTER  IV. 

BONDS,   LIQUIDATED   DAMAGES,   AND    ALTERNATIVE   CONTRACTS. 

44.    Penal  Bonds   122-123 

45—17.    Liquidated  Damages  and  Penalties 123-127 

4S-57.  Rules  of  Construction 127-141 

58.  Alternative  Contracts   141-143 

CHAPTER  V. 

INTEREST. 

59.  Definition    144 

CO.    Interest  as  a  Debt  and  as  Damages 145-151 

61.    General  Rule   151-152 

02.  Interest  on  Nonpecuniary  Losses 152-153 

03.  Pecuniary   Losses— Liquidated    Demands 153-157 

64.  Pecuniary  Losses— Unliquidated  Demaiuls 157-100 

05.  Contracts    100-102 

66-67.  Torts    102-107 

08.  Condemnation  Proceedings  107 

69.  Defendant  not  Responsible  for  Delay 168 

70.  Interest  on  Overdue  Paper— Contract  and  Statute  Rate 168-171 

71.  Compound  Interest  171-175 

CHAPTER  VI. 

VALUE. 

72.  Definition    170 

73.  How   Estimated   176-178 


TABLE    OF    GOXTENTS.  IX 

Section  Page 

74-75.    :Market    Value    178-182 

76.    Value  Peculiar  to  Owner 182-183 

77-78.    Pretium    Affectionis 183-185 

79.  Time  and  Place  of  Assessment 185-186 

80.  Highest    Intermediate    Value 186-195 

81-82.    Medium  of  Payment— Legal  Tenders 195-199 


CHAPTER  VII. 

EXEMPLARY   DAMAGES. 

83-84.    In   General 200-200 

85-86.    When    Kecoverable    207-217 

87.  Liability  of  Principal  for  Act  of  Agent 217-220 

CHAPTER  Vm. 

PLEADLXG   AND    PRACTICE. 

88.  Allegation  of  Damage— The  Ad  Damnum 221-223 

89-91.  Form  of  Statement 223-227 

92-93.    Province  of  Court  and  Jury 227-236 

CHAPTER  IX. 

BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS. 

94-90.    Action  by  Seller— Where  Property  has  not  Passed— Damages 

for  Nonacceptance   237-239 

97.  Where  Property  has  Passed— Damages  for  Nonpayment. .240-241 

98-99.    Action  by  Buyer— Damages  for  Nondelivery 241-240 

100.  Damages  as  for  Conversion : .  .240-247 

lOL  Damages  for  Breach  of  Warranty 247-250 

CHAPTER   X. 

D.\M.\GES  IN  ACTIONS  AGAIN.ST  (".\!JKI1:RS. 

102-10.^.    Carriers  of  Goods— Damages  for  Refusal  to  Transport 251-252 

lot.  Damages  for  Loss  or  Nondelivery 252-254 

105.  Damages  for  Injury  in  Transit 254^255 

KK;  107.  Damages   for   Dilay 255-256 


TABLE    OF"  CONTENTS. 

Cectlon  Page 

lOS.  Consequential  Damages   'J.")G-257 

109.  Carriers  of  Passengers— Damages  for  Injuries  to  Passenger.. 257-259 

110.  Exemplary  Damages  and  Mental  Suffering 239-200 

111.  Personal  Injury   2G0 

112.  Failure  to  Carry  Passenger— Delay 2G0 

113.  Failure  to  Carry  to  Destiuation— Wrongful  Ejection 2G1-263 


CHAPTER  XI. 

DAMAGES   IN   ACTIONS   AGAINST   TELEGRAPH    COMPANIES. 

114.  Public  Nature   2G4r-265 

115.  Action  by   Sender 2(!5-2G6 

116.  Action  by   Receiver 2UG-267 

117-118.  Compensatory   Damages    2U7-268 

119.  Proximate  and  Certain  Damages 2t>S-276 

120.  Remote  and  Speculative  Damages 277-282 

121.  Damages  not  within  Contemplation  of  Parties— Notice  of 

Purpose  and  Importance  of  Message 282-289 

122.  Messages  not  Understood— Cipher  Messages 289-293 

123.  Avoidable   Consequences    293-295 

124.  Exemplary   Damages   295-296 

CHAPTER   XII. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT. 

125.  The  Rule  at  Common  Law 297-300 

126.  Damages  in  Statutory  Action— Pecuniary  Loss 300-301 

127.  No  Damages  for  Solatium 301-304 

128.  Exemplary   Damages   304-^06 

129.  No  Damages  for  Injury  to  Deceased 306--308 

130.  Medical  and  Funeral  Expenses 308-309 

131.  Meaning  of  "Pecuniary" 309-310 

132.  Prospective  Pecuniary   Losses 310-311 

1.33.  Future   Care  and  Support .311-317 

134-135.  Future  Services   317-328 

136.  Prospective  Gifts    328-334 

137.  Prospective  Inheritance    334-337 

138.  Evidence  of  Pecuniary  Condition  of  Beneficir.riL's 33S-339 

139.  Expectation  of  Life— Life  T:il)h>s 33;)-340 

1 10.  Interest  as  Damages 341 

141.  Reduction    of    Damages 341-C43 


TABLE    OF    CONTENTS. 


XI 


toeciion  Page 

142.  Discretion    of  Jury r;4:i-347 

143.  Nominal    Damages    :i4S-34r> 

144.  Allegation  of  Damages 349-oul 


CHAPTER   Xm. 

WRONGS  AFFECTING  REAL  PROPERTY. 

145-147.    Damages  for  Detention  of  Real  Property .352-355 

148.  Damages  for  Detention  of  Dower 355-356 

149-150.    Injuries  to   Real   Property— Trespasses 357-360 

151-152.  Nuisance    361-363 

153-154.  Waste    363 

155.  Contracts  to  Sell  Real  Property— Breach  by  Vendor 304r-366 

156.  Breach  by   Vendee 306-367 

157.  Breach  of  Covenants— Seisin  and  Right  to  Convey 367-36S 

158.  Warranty  and  Quiet  Enjoyment 36S-369 

159.  Against  Incumbrances   369-371 

160.  Covenants  in  Leases 371 


CHAPTER  XIV. 

BREACH   OF   MARRIAGE   PROMISE. 

161.  '  In  General 372 

162.  Compensatory   Damages    372-378 

163.  Exemplary  Damages   378-379 

t 


HANDBOOK 


LAW  OF  DAMAGES. 


CHAPTER  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES. 

1.  Definition  and  Nature. 

2.  The  Theory  of  Damages. 

3.  Wrong  and  Damage. 

4.  Lawful  and  Unlawful  Conduct. 

5.  Authorized  Conduct. 
6-7.  Forbidden  Conduct. 

8-11.  Conduct  neither  Authorized  nor  Forbidden. 

12.    Analysis  of  Legal  Wrongs. 
13-14.    Classification  of  Damages. 

DEFINITION  AND  NATURE. 

1.  Damages  are  the  pecuniary  reparation  -which  the  law 
compels  a  w^rongdoer  to  make  to  the  person  in- 
jured by  his  wrong. 

Wherever  the  comDion  law  recognizes  a  right,  it  also  gives  a  rem- 
edy for  its  violation.^  "Ubi  jus,  ibi  remedium."  "Eight"  and  "rem- 
edy" are  correlative  terms.  Remedies  are  either  preventive  of 
threatened  wrongs,  or  redressive  of  wrongs  committed.  Redressive 
remedies  may  afford  specific  relief,  as  where  one  is  compelled  to  do 
the  very  thing  he  agreed  to  do ;   or  they  may  afford  merely  a  pecun- 

1  3  Bl.  Comm.  p.  123,  c.  8;  Ashby  v.  While,  1  Salk.  VJ,  21;  Yates  v.  Joyce, 
11  Johns.  13(5.   140. 

LAW  DAM. 


2  DEFINITIONS    AND    GENERAL    PRINCIPLES.  (Cll.    1 

iai'j  reparation,  as  where  a  money  award  is  given  in  lieu  of  the  thing 
agreed  to  be  done.  Common-law  remedies,  with  few  exceptions,^ 
are  of  the  latter  kind.  For  most  wrongs,  an  award  of  a  pecuniary 
recompense  is  the  sole  remedy  afforded.  Equity  may  prevent  threat- 
ened wrongs  by  injunction,  or  afford  specific  relief;  but  at  common 
law  almost  the  sole  power  of  the  court  is  to  make  and  enforce  a 
money  judgment.^  The  niles  by  which  the  amount  of  money  or 
damages  to  be  awarded  in  particular  cases  is  determined  constitute 
the  law  of  damages,  and  form  the  subject  of  the  present  volume. 
These  rules  form  a  branch  of  the  remedial  law,  and  in  the  following 
pages  their  application  always  presupposes  a  violation  of  a  right 
given  or  recognized  by  the  law  substantive. 

Damages  a  Species  of  Property. 

The  right  to  recover  damages  for  an  injury  is  a  species  of  prop- 
erty, and  vests  in  the  injured  part}'^  immediately  on  the  commission 
of  the  wrong.*  It  is  not  the  subsequent  verdict  and  judgment,  but 
the  commissicm  of  the  wrong,  that  gives  the  right.  The  verdict 
and  judgment  simply  define  its  extent.  Being  propertj',  it  is  pro- 
tected by  the  ordinary  constitutional  guaranties.^  Except  when 
the  wrong  is  a  personal  tort,  or  the  breach  of  a  marriage  promise, 

-  Repleviu.  detinue,  ejectment,  proceedings  to  recover  dower,  abatement  of 
nuisance,  quo  warranto,  mandamus,  prohibition,  habeas  corpus,  estrepement, 
and  the  obsolete  brevia  anticipantia.  See  1  Co.  Litt.  100a;  Stoiy,  Eq.  Jur.  §§ 
730,  825. 

3  In  Robinson  v.  Bland,  2  Burrows,  1077-lOSU,  an  action  for  nonpayment  of 
money.  Lord  Mansfield  said:  "A.lthough  this  be  nominally  an  action  for  dam- 
age, yet  it  is  really  and  effectually  brought  for  a  specific  performance  of  the 
contract;  for  pecuniary  damages  upon  a  contract  for  the  payment  of  money 
are,  from  the  nature  of  the  thing,  a  specific  performance." 

4  2  Bl.  Comm.  438;   1  Suth.  Dam.  §  7;   1  Sedg.  Dam.  §  5. 

B  Cooley,  Const.  Lim.  {5th  Ed.)  445;  Streubel  v.  Railroad  Co.,  12  Wis.  74; 
Westervelt  v.  Gregg,  12  N.  Y.  202,  211;  Dash  v.  Van  Kleeck,  7  Johns.  477; 
Thornton  v.  Turner,  11  Minn.  33G  (Gil.  237);  Williar  v.  Association,  45  Md. 
546;  Griffin  v.  Wilcox,  21  Ind.  370;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Pounds, 
11  Lea,  127;  Thirteenth  &  F.  St.  P.  Ry.  v.  Boudrou,  92  Pa.  St.  475,  482.  It 
cannot  be  extinguished  except  by  act  of  the  parties,  or  by  operation  of  stat- 
utes of  limitation.  Bowman  v.  Teall,  23  Wend.  300;  Allaire  v.  Whitney,  1 
Hill,  484;  Whitney  v.  Allaire,  1  N.  Y.  305;  Christiansen  v.  Linford,  3  Rob.  (N. 
Y.)  215;  Bayliss  v.  Fisher,  7  Bing.  153;  Willoughby  v.  Backhouse,  4  DowL  & 
R.  539,  2  Barn.  &  C.  821;    Clarke  v.  Meigs,  10  Bosw.  337. 


§    2)  THE    THEORY    OF    DAMAGES.  3 

it  passes  to  the  injured  party's  personal  representative,  and  is  as- 
signable.' 

THE  THEORY  OF  DAMAGES. 

2.  The  theory  upon  Tvhich  damages  are  a-warded  in  civil 
actions  is  that  they  are  an  indemnity  to  the  person 
injured,  not  a  punishment  to  the  -wrongdoer. 
EXCEPTION — Where  a  tort  is  accompanied  by  circum- 
stances of  fraud,  gross  negligence,  malice,  or  op- 
pression, exemplary  damages  are  sometimes  aw^ard- 
ed  as  a  punishment  to  the  offender. 

■Compensation  the  Rale. 

Compensation  is  the  fundamental  and  all  pervasive  principle  gov- 
erning the  award  of  damages.^     Compensation,  not  restitution,  value, 

G  Final  v.  Backus,  IS  Mich.  218;  Sears  v.  Conover,  *42  N.  1'.  113;  Nortli  v. 
Turner,  9  Serg.  &  R.  (Pa.)  244;  Johnston  v.  Bennett,  5  Abb.  Prac.  (N.  S.)  331; 
Butler  V.  New  York  &  E.  R.  Co.,  22  Barb.  110;  Zabriskie  v.  Smith,  13  N.  Y. 
32?;  Haight  v.  Hayt,  19  N.  Y.  4&4;  Richtmeyer  v.  Remsen,  38  N.  Y.  20(3;  Pur- 
ple V.  Hudson  R.  R.  Co.,  4  Duer,  74;  Zogbaum  v,  Parker,  66  Barb.  341;  Wal- 
dron  v.  Willard,  17  N.  Y.  466;  Grocers'  Nat.  Bank  v.  Clark,  48  Barb.  26;  Mc- 
Kee  V.  .Tudd,  12  N.  Y.  622;  McDougall  v.  Walling,  48  Barb.  364;  Fried  v.  New 
York  Cent.  R.  Co.,  25  How.  Prac.  285;  Rice  v.  Stone,  1  Allen,  566;  Muusell 
V.  Lewis,  4  Hill,  635;  Robinson  v.  Weeks,  6  How.  Prac.  161;  Jordan  v.  Gillcu, 
44  N.  H.  424;  Grant  v.  Ludlow's  Adm'r,  8  Ohio  St.  1;  Foy  v,  Troy  &  B. 
R.  Co.,  24  Barb.  382;  Smith  v.  New  York  &  N.  H.  R.  Co.,  28  Barb.  6i)5; 
Blakeney  v.  Blakeney,  6  Port.  (Ala.)  109;  Nettles  v.  Barnett,  8  Port.  (Ala.)  181; 
Hoyt  V.  Thompson,  5  N.  Y.  820,  347;  Nash  v.  Plamilton,  3  Abb.  Prac.  35; 
The  Sarah  Ann,  2  Sumn.  206,  Fed.  Cas.  No.  12,342;  Meech  v.  Stoner,  19  N.  Y. 
26;  Linton  v.  Hurley,  104  Mass.  353.     See  Barnard  v.  Harrington,  3  Mass.  228. 

7  Filliter  v.  Phippard.  12  Jur.  202,  204,  11  Adol.  &  E.  (N.  S.)  347,  356.  "Tne 
declared  object  of  awarding  damages  is  to  give  compensation  for  pecuniary 
loss;  that  Is,  to  put  the  plaintiff  in  the  same  position,  so  far  as  money  can 
do  it,  as  he  would  have  been  if  the  contract  had  been  performed  or  the  tort 
not  committed."  Sedg.  Dam.  §  30;  Smith  v.  Sherwood,  2  Tex.  460;  Grillin 
V.  Colver,  1(5  N.  Y.  4S9,  Mechem,  Cas.  Dam.  74;  Robinson  v.  Ilarmau,  1  Exch. 
850.  "In  general,  the  rule  for  the  measure  of  damages  in  cases  or  tort  m.Ty 
be  said  to  be  that  which  aims  at  actual  compensation  for  the  injury.  ♦  *  <• 
There  are  qualifications,  however;  as  that  inadvertent  or  unintentional  injuries 
or  acts,  unaccompanied  with  malice,  draw  after  them  only  their  direct  and 
Immediate  conse(inences,  and  not  those  remote  and  speciiLilivc;    while  grossly 


4  DEFINITIONS    AND    GENERAL    PUIXCIPLES.  (Cll.    1 

not  cost,  is  the  measure  of  relief.^  Whether  the  action  be  ex  con- 
tractu or  ex  delicto,  the  end  in  view  is  the  same, — that  plaintiff  be 
made  whole.  "In  civil  actions  the  law  awards  to  the  party  injured 
a  just  indemnity  for  the  wrong-  which  has  been  done  him,  and  na 
more,  whether  the  action  be  in  contract  or  tort.  Except  in  those 
special  cases  where  punitory  damages  are  allowed,  the  inquiry  must 
always  be,  what  is  an  adequate  indemnity  to  the  party  injured ?  And 
the  answer  to  that  question  cannot  be  affected  by  the  form  of  action 
in  which  he  seeks  his  remedy."  ^  Indemnity  is  achieved,  in  the  eye» 
of  the  law,  by  awarding  plaintiff  a  money  judgment.  Practically,, 
an  injured  party  seldom  receives  complete  indemnity.  All  injuries 
are  not  pecuniary,  and  many  are  difficult  to  estimate  in  money.  No 
amount  of  money  is  adecjuate  to  compensate  one  for  the  loss  of  a 
limb  or  an  eye.  Their  value  cannot  be  estimated  in  mone3^  But, 
in  the  nature  of  things,  a  money  award  is  the  only  redress  the  law 
ran  offer. 

Proximate  and  Remote  Consequences. 

Though  compensation  is  the  theory  and  aim  of  the  law  in  award- 
ing damages,  every  consequence  of  a  wrong  is  not  an  element  in  the 
calculation  of  what  is  legal  compensation.  A  person  wronged  can 
recover  compensation  only  for  the  direct  or  proximate  consequences 
of  the  wrong.      To  hold  one  liable  for  all  the  consequences  of  a 

negligent  or  malicious  acts  may  be  tlie  subject  of  large  damages."  Agnew  -i- 
in  Seely  v.  Alden,  Gl  Pa.  St.  302,  304.  See,  also,  Forsytli  v.  Wells,  41  Pa. 
St.  291;  Woodman  v.  Nottingham,  49  N.  H.  387.  "The  injured  party  must 
be  indemnified.  He  must  be  placed  in  the  same  situation  in  which  he  would' 
have  been  had  the  wrong  not  been  committed."  Duer,  .1.,  in  Suydam  v.  Jen- 
kins, 3  Sandf.  614,  620. 

8  Pol.  Torts,  c.  5,  citing  Whitham  v.  Kersliaw,  10  Q.  B.  Div.  013.  See,  also. 
Snell  V.  Delaware  Ins.  Co.,  4  Dall.  430;  Quinn  v.  Van  Pelt,  56  N.  Y.  417.  Cf. 
Waters  v.  Greenleaf-Johnson  Lumber  Co.,  115  N.  C.  048,  20  S.  E.  718. 

9  Baiier  v.  Drake,  53  N.  Y.  211,  220.  In  an  action  for  breach  of  contract  of 
carriage,  "what  the  passenger  is  entitled  to  recover  is  the  difference  between 
wliat  he  ought  to  have  had  and  what  he  did  have."  Hobbs  v.  Railroad  Co., 
L.  R.  10  Q.  B.  Ill,  120.  See,  also,  Wall  v.  City  of  London  Real  Property  Co... 
L.  R.  9  Q.  B.  249.  Damages  for  breach  of  contract  is  not  limited  by  the  con- 
sideration paid.  Quinn  v.  Van  Pelt,  56  N.  Y.  417;  Bennett  v.  Buchan.  01  X.  Y 
222. 


§    2)  THE    THEORY    OF    DAMAGES.  *  5 

wrongful  act  "would  set  society  on  edge,  and  fill  the  courts  with 
useless  and  injurious  litigation."  ^° 

A  rule  of  damages  which  should  embrace  within  its  scope  all  the 
consequences  which  might  be  shown  to  have  resulted  from  a  failure 
or  omission  to  perform  a  stipulated  duty  or  service  would  be  a  seri- 
ous hindrance  to  the  operations  of  commerce,  and  to  the  transaction 
of  the  common  business  of  life.  The  effect  would  often  be  to  im- 
pose a  liability  wholly  disproportionate  to  the  nature  of  the  act  or 
service  which  a  party  had  bound  himself  to  perform;  and  to  the  com- 
pensation received. ^^  For  example,  consider  the  consequences  of  a 
failure  to  pay  money  when  due,  "It  may  bring  pecuniary  embar- 
rassment to  the  payee,  and  subject  him  to  extortion  from  usurers; 
loss  of  valuable  and  profitable  contracts  and  undertakings, — pro- 
spective gains  and  profits;  to  the  importunity  of  creditors;  suits 
at  law  and  in  ecfuity;  and  consequent  costs  and  expenses;  and, 
finally,  bankruptcy  and  pecuniary  ruin.  It  may  cause  not  only  loss 
of  business,  but  of  reputation,  of  comfort,  peace  of  mind,  and  happi- 
ness. And,  moreover,  it  may  cause  suffering,  sickness,  insanity, 
and  destroy  the  social  standing  and  relations,  not  only  of  himself, 
but  of  his  family.  But  these  possible,  nay,  perhaps,  common,  re- 
sults, are  too  remote  and  intangible  to  be  considered  as  legal  losses 
resulting  from  the  nonpayment  of  money  Avhen  due.  The  task  of 
Investigating  such  results,  and  fixing  a  pecuniary  value  on  them, 
would  be  hopeless.  And,  if  it  were  possible,  the  liability  for  such 
remote  consequential  losses  would  appall  the  most  heroic  and  par- 
alyze the  energies  of  the  most  enterprising  business  man."  ^-  The 
lav,-  therefore  limits  liability  for  consequences  to  the  direct  or  prox- 
imate results  of  the  act  complained  of.^^  "Causa  proxima  et  non 
remota  spectatur."  Any  other  rule  would  result  in  wrong  and 
injustice.  There  is  a  point  beyond  which  the  chain  of  causation 
cannot  be  traced  with  any  degree  of  certainty.  "To  the  proximate 
cause  we  may  usually  trace  consequences  with  some  degree  of  as- 

10  Fleming  v.  Beck,  iS  Pa.  St.  30'J,  313. 

li  Squire  v.  Western  Union  Tel,  Co.,  98  Mass,  232;  Cuttiuy  v.  Grand  Trunk 
Ry.  Co.,  13  Allen,  381;  Fox  v.  Harding,  7  Cush.  51U;  Le  Peiutur  v.  Southeast- 
ern Ry.  Co.,  2  Law  T.  (N.  S.)  170. 

12  Field.  Dam.  §  211. 

13  Add.  Torts,  C.     S<-<-,  :ilsu,  jMist,  :;i. 


6  DEFINITIONS    AND    GENERAL    PRINCIPLES.  (Ch.   1 

surance;   but  beyond  that  we  enter  a  field  of  conjecture,  where  the 
uncertainty  renders  the  attempt  at  exact  conclusions  futile."  ^* 

Exemplary  Damages. 

The  allowance  of  anything  more  than  an  adequate  pecuniary  in- 
demnity for  a  wrong  suffered  is  a  great  departure  from  the  principle 
on  which  damages  in  civil  actions  are  awarded;  ^^  but  the  case  of 
aggravated  torts  constitutes  a  well-recognized  exception  to  the  rule. 
Tn  such  cases  it  is  thought  that  the  damages  are  not  limited  to  an 
amount  sufficient  to  compensate  plaintiff  for  the  wrong  suffered,  bur 
that  a  further  sum,  called  "exemplary,"  "vindictive,"  or  "punitive" 
damages,  may  be  awarded  as  a  punishment  to  the  offender.^ ^  Ex- 
emplary damages  cannot  be  recovered  for  breach  of  contract,^ ^  with 
perhaps  the  single  exceptibn  of  a  breach  of  promise  of  marriage.^  ^  In 
many  jurisdictions  the  soundness  of  the  doctrine  of  exemplary  dam- 
ages is  stoutly  denied,  but  the  weight  of  authority  is  the  other  way. 
The  doctrine  is  to  be  supported,  if  at  all,  mainly  on  the  grounds  of 

14  Cooley,  Torts,  p.  73. 

15  Field,  Dam.  §  32,  note;    Milwaukee  &  St.  P.  Ry.  Co.  v.  Arms,  91  U.  S.  48'.). 

16  Thus,  in  Embleu  v.  Myers,  6  Hurl.  &  N.  54,  it  was  held  that  the  jury  might 
take  into  consideration  the  motives  of  the  defendant;  and,  if  negligence  wag 
accompanied  with  a  contempt  of  the  plaintiff's  rights  and  convenience,  they 
might  give  exemplary  damages.  See,  also.  Day  v.  Woodworth,  13  How.  363; 
Winter  v.  Peterson,  24  N.  J.  Law,  524;  Hagan  v.  Providence  &  W.  R.  Co.,  3 
R.  I.  88;  Dean  v.  Blackwell,  18  111.  330;  Sehindel  v.  Schiudel,  12  Md.  108;  God- 
dard  v.  Grand  Trunk  Ry.,  57  Me.  202,  Mechem,  Cas.  Dam.  26;  Lucas  v.  Michi- 
gan Cent.  R.  Co.,  98  Mich.  1,  56  N.  W.  1039,  Mechem,  Cas.  Dam.  12. 

17  In  Singleton's  Adm'r  v.  Kennedy,  9  B.  Mon.  (Ky.)  222,  it  was  expressly 
held  that  vindictive  damages  could  not  be  given  for  a  fraudulent  breach  of  con- 
tract. 

18  Southard  v.  Rexford,  6  Cow.  254,  Coryell  v.  Colbaugh.  1  N.  .7.  Law,  90; 
Stout  v.  Prall,  Id.  93;  Denslow  v.  Van  Horn,  16  Iowa,  476;  Berry  v.  Da  Costa, 
L.  R.  1  C.  P.  331;  Green  v.  Spencer,  3  Mo.  318;  Hill  v.  Maupin.  Id.  32.3;  Chel- 
11s  V.  Chapman,  125  N.  Y.  214,  26  N.  E.  308.  See,  also,  Baldy  v.  Stratton,  11 
Pa.  St.  316,  322,  in  which  it  was  held  by  Rogers,  J.,  that  "it  would  be  a  mere 
mockery  of  justice  to  confine  the  jury  to  give  compensation  merely  for  the 
value  of  a  worthless  husband."  In  Thorn  v.  Knapp,  42  N.  Y.  474,  it  was  held 
that,  as  to  the  measure  of  damages,  an  action  for  breach  of  promise  of  mar- 
riage has  always  been  classed  with  actions  of  torts,  and  that  the  defendant's 
motives  might  be  inquired  into  as  furuishiug  grounds  for  punitive  damages. 


§    3)  WRONG    AND    DAMAGE.  7 

authority  and  convenience.     The  subject  will  be  fully  considered  in 
a  subsequent  chapter.^® 

Damages  a  Mixed  Question  of  Law  and  Fad. 

The  extent  of  the  loss  caused  by  a  wrong,  and  therefore  the  quan- 
tum of  damages  necessary  to  indemnify  the  party  injured,  is  a  ques- 
tion of  fact,  but  it  is  not  left  to  the  arbitrary  discretion  of  a  jury. 
The  rule  by  which  the  amount  or  extent  of  redress  should  be  ascer- 
tained in  any  given  case  is  a  question  of  law,-"  and  the  jury  are 
bound  by  the  rule  laid  down  by  the  court.^^  In  cases  where  exem- 
plary damages  are  considered  proper,  and  those  cases  of  personal 
torts  where  the  damages  cannot  be  measured  by  any  definite  pecun- 
iary standard,  because  not  made  up  of  pecuniary  elements,  the  sound 
discretion  of  the  jury  is  the  only  standard  possible;  --  and  even  in 
this  class  of  cases,  though  the  jury  have  a  large  discretion,  it  is  not 
wholly  arbitrary,  for  the  court  may  set  aside  a  verdict  which  is  so 
unreasonable  as  to  clearly  show  that  it  was  the  result  of  passion  or 
prejudice.* 

WRONG  AND  DAMAGE. 

3.  Whenever  a  legal  right  is  violated,  and  only  then,  dam- 
ages may  be  recovered. 

Damnum  absque  Injuria — Injuria  sine  Damno. 

The  law  does  not  undertake  vain  or  impossible  things.  It  has 
always  recognized  that  in  actual  life  many  losses  must  go  without 
compensation,  and  much  harm  be  suffered  without  redress.  Not 
every  damage  in  fact  is  damage  in  law.  "There  is  merely  an  imper- 
fect coincidence  between  the  spheres  of  things  hurtful  in  fact  and 
things  hurtful  in  law;  the  sphere  of  the  latter  being  smaller  than, 
and  included  in,  that  of  the  former.  This  distinction  is  exj)ri>ssi'(l 
in  the  technical  language  of  English  lawyers  by  the  pair  of  con- 
trasted terms  'damnum'  and  'injuria,' — the  former  comprising  tluit 
which  is  hurtful  in  fact;    the  Intloi-,  thnt  \\hicli  is  wroiigfiil  in  hnv. 

i«  See  post.  200.  20  See  post,  227.  »»  See  post,  227. 

22  See  post,  229.  *  See  post,  2:'.(). 


8  DKFINITIOXS    AND    GENKRAL    PKlXCirLES,  (Cll.    1 

The  space  throughout  which  the  sphere  of  the  former  fails  to  coin- 
cide with  that  of  the  hitter  is  the  domain  of  what  is  technically 
known  as  'damnum  absque  injuria' "  ^^ 

To  sustain  an  action  for  damages,  the  violation  of  a  legal  right 
must  be  shown.-*  For  every  violation  of  a  legal  right  damages 
may  be  recovered.^ "^  This  is  necessarily  so,  for,  as  has  been  seen,  an 
award  of  damages  is  substantially  the  only  remedy  of  the  common 
law;  and,  if  damages  could  not  be  recovered  for  the  violation  of 
every  legal  right,  there  would  be  rights  without  remedies,  and  '*it  is 
a  vain  thing  to  imagine  a  right  without  a  remedy,  for  want  of  right 
and  want  of  remedy  are  reciprocal."  ^®  "Eights  and  duties,  so 
called,  existing  beyond  the  limits  of  legal  remedy,  may  be  matter  of 
enlightened  curiosity,  and  moral  and  metaphysical  speculation,  but 

2  3  Salmond,  Jur.  160. 

24  Webb  V.  Portland  Manuf  g  Co.,  3  Sumn.  ISO,  Fed.  Cas.  No.  17,322,  and 
Meohem,  Cas.  Dam.  3.  "A  legal  right  must  be  invaded  in  order  that  an  action 
of  tort  may  be  maintained.  The  mere  fact  that  a  complainant  may  have  suf- 
fered a  damage  of  the  kind  which  the  law  recognized  is  not  enough.  There 
must  also  be  a  violation  of  a  duty  recognized  by  law.  In  the  language  of  the 
civil  law,  mere  damnum  is  not  enough;  there  must  also  be  injuria."  Jag. 
Torts,  87.  "You  must  have,  in  our  law,  injury  as  well  as  damage."  Jessell, 
M.  E..  in  Day  v.  Brownrigg.  10  Ch.  Div.  294  (304).  See,  also.  Backhouse  v. 
Bonomi,  9  H.  L.  Cas.  503;  Salvin  v.  Coal  Co.,  9  Ch.  App.  705.  It  is  an  es- 
sential to  an  action  in  tort  that  the  act  complained  of  should,  under  the  cir- 
cumstances, be  legally  wrongful  as  regards  the  party  complaining;  that  is,  it 
must  prejudicially  affect  him  in  some  legal  right.  :Merely  that  it  will,  how- 
ever, do  a  man  harm  in  his  interest,  is  not  enough.  Rogers  v.  Rajendro,  13 
Moore,  P.  C.  209.  "At  the  foundation  of  every  tort,  there  must  be  some  vio- 
lation of  a  legal  duty,  and  therefore  some  unlawful  act  or  omission."  Rich  v. 
New  York  Cent.  &  H.  R.  R.  Co.,  87  N.  Y.  382.  "The  violation  of  a  moral  right 
or  duty,  unless  it  also  amounts  to  a  legal  right  or  duty,  does  not  constitute  a 
tort."  Chase,  Lead.  Cas.  8;  1  Aust.  .Tur.  lect.  5,  "Conflict  of  Law  and  Moral- 
ity"; Rex  v.  Smith,  2  Car.  &  P.  449.  "It  is  not  every  moral  and  social  duty 
the  neglect  of  which  is  the  ground  of  an  action;  for  there  are  what  are 
called,  in  the  civil  law,  'duties  of  imperfect  obligation,'  for  the  enforcing  of 
which  no  action  lies."  Lord  Konj-on,  C.  J.,  in  Pasley  v.  Freeman,  3  Term  R. 
51,  63. 

2  5  Webb  V.  Portland  Manuf  g  Co.,  3  Sumn.  189,  Fed.  Cas.  No.  17,322,  and 
Mechem,  Cas.  Dam.  3. 

2  6  Lord  Hold  in  Ashby  v.  White,  2  Ld.  Raym.  955. 


^    3)  WRONG    AND    DAMAGE.  9 

they  are  not  violations  of  common  law."  ^"^      It  is  necessary,  there- 
fore, to  determine  the  exact  nature  of  legal  rights. 

Same — Legal  Rights  and  Wrongs. 

Governments  exist  for  the  benefit  of  the  governed,  and  this  benefit 
is  afforded  in  the  establishment  and  protection  of  rights.-*  Every 
law  exists  for  the  purpose  of  establishing  and  protecting  legal 
rights.-''  A  legal  right  is  a  right  with  which  the  law  invests  one 
person,  and  in  respect  to  which,  for  his  benefit,  a  duty  is  imposed  on 
another  or  others  to  do  or  refrain  from  doing  certain  acts.^°  Rights 
-and  duties  are  correlative  and  coexistent  terms.  Sometimes  the 
right  is  given,  and  sometimes  the  duty  is  created.  Whenever  a 
right  is  given,  the  corresponding  duty  at  once  arises;  whenever  a 
duty  is  created,  a  corresponding  right  springs  into  existence.  "Vio- 
lation of  right"  and  "breach  of  duty"  are  equivalent  terms.^^ 

The  one  fundaotiental  right  of  which  all  men  are  desirous,  and 
"for  the  enforcement  of  which  governments  are  established,  is  the 
right  not  to  be  harmed  in  any  respect  which  affects  their  being  and 
well-being,  their  happiness,  and  immunity  from  pains.  In  our  sys- 
tem of  law,  speaking  broadly,  this  right  not  to  be  harmed  takes 
the  form  of  the  common-law  command  not  to  injure  another  in  re- 
spect to  his  person,  his  property,  or  his  reputation."-  This  is  the 
d'.ity  imposed  on  all  members  of  the  community,  and  the  correlative 
rights  arise  in  each  member  not  to  be  injured  in  respect  to  his  se- 
curity of  person,  his  security  of  reputation,  and  his  security  in  the 
acquisition  and  enjoyment  of  property.  Rights  which  cannot  be  re- 
ferred to  one  of  these  three  classes  have  no  legal  existence.  For 
example,  the  law  has  not  created  a  right  to  privacy;  and  therefore 
an  action  for  damages  for  the  invasion  of  privacy  by  opening  win- 
dows was  dismissed.  Defendant,  by  overlooking  plaintiff's  prop- 
erty, violated  no  legal  right  of  the  plaintiff,  because  a  right  to  pri- 
vacy is  unknown-^*      So,  also,  the  law  has  not  created  a  right  to 

27  Ammicau  note  to  Co{,'!,'s  v.  Bernard,  1  Smitli,  Lead.  Cas.  Eq.  411. 

2  8  Cooley,  Torts,  23. 

20  Holl.  Jur.  c.  S;   Wise,  Jur.  20. 

30  Aust.  Jur.  lect.  IG.     See,  also,  loct.  0. 

31  Pig.  Torts,  10. 

2  2  Pig.  Torts,  10;   Cooley,  Torts,  2:',. 
33  Tapliug  V.  Joae.s,  11  II.  L.  Cas.  2U0. 


10  DEFINITIONS    AND    GENERAL    PRINCIPLES.  (Ch.    1 

mental  tranquillity,  and  th(M-ofore  no  action  lies  for  causing  fright  or 
nervous  terror,  unaccompanied  by  physical  harm.^*  A  mere  insult^ 
however  gross,  is  not  actionable.* 

It  is  obvious  that,  even  with  respect  to  person,  property,  and  repu- 
tation, the  right  not  to  be  harmed  cannot  exist  to  the  full  extent  of 
the  above  broad  statement  of  the  right;  for,  as  every  member  of  the 
community  has  the  same  right  not  to  be  harmed,  the  rights  of  differ- 
ent individuals  would  clash.  Thus,  the  right  of  one  to  do  what  he 
likes  on  his  own  property,  which  is  a  part  of  his  right  not  to  be 
harmed  in  respect  to  his  property,  may  conflict  with  the  right  of 
another  not  to  be  harmed  in  respect  to  his  property.  Each  one's 
right  not  to  be  harmed,  therefore,  must  be  limited  so  as  to  allow^  of 
the  equal  exercise  by  others  of  their  rights.  It  follows  that  harm 
may  sometimes  be  inflicted  without  violating  a  legal  right,  for  all 
harm  is  not  prohibited.  In  other  words,  w'hile  damage  or  harm  is 
an  essential  element,  mere  damage  alone  does  not  constitute  a  legal 
wrong.^^ 

While  the  primary  object  of  law  is  to  prevent  harm,  and  all  legal 
rights  may  be  resolved  into  the  right  not  to  be  harmed,  the  fact  that 
conduct  results  in  damage  or  harm  is  not  conclusive  that  such  con- 
duct is  wrongful  in  law;  for,  as  has  been  seen,  the  law^  does  not  for- 
bid all  damage.  There  has  been  much  confusion  of  thought  in  re- 
gard to  the  terms  "damnum"  and  "injuria,"  which  may  be  avoided 
by  careful  definition  and  consistent  use  of  the  terms.  Thus,  it  is 
said  that  no  action  lies  for  damnum  absque  injuria;  and  this,  as  has 
been  seen,  is  true,  the  phrase  being  translated  "actual  damage  with- 
out legal  wrong."  ^^  But  the  converse  of  this  proposition  is  also 
stated, — that  no  action  lies  for  injuria  sine  damno.  Translating,  as 
before,  we  have  the  proposition  that  "for  a  legal  wrong  without 
actual  damage  no  action  lies,"  which  is  untrue.     As  has  been  seen, 

3*  Atchison,  T.  &  S.  F.  R.  Co.  v.  McGinnis,  46  Kan.  109,  26  Pac.  453;  Terre 
Haute  &  I.  R.  Co.  v.  Brunker,  12S  Ind.  542,  26  N.  E.  178;  Canning  v.  Inhab- 
itants of  Williamstown,  1  Cush.  451;  Ft.  Worth  &  D.  C.  Ry.  Go.  v.  Burton 
(Tex.  App.)  15  S.  W.  197;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trott,  86  Tex.  412.  2.5 
S.  W.  419;  Ewing  v.  Railway  Co.,  147  Pa.  St.  40.  23  Atl.  340.  Cf.  Yoakum  t.. 
Kroeger  (Tex.  Civ.  App.)  27  S.  W.  953. 

*  By  Code,  Va.  §  2897,  insulting  words  are  made  actionable. 

8B  See  ante,  note  24. 

8  6  Ante,  p.  7. 


§    3)  WRONG    AND    DA5IAGE.  li 

to  denv  the  remedy  is  to  deny  the  right  which  has  been  violated." 
Again,  substituting  for  "legal  wrong"  its  equivalent,  we  have  the 
proposition  that  "for  the  violation  of  a  right  not  to  be  harmed,  with- 
out actual  damage,  no  action  lies,"  which  is  sheer  nonsense. 

It  is  objected  that  damage  is  not  always  an  essential  element  of  a 
legal  wrong,  because  many  wrongs  are  admitted  to  exist  for  which 
an  action  may  be  maintained,  though  no  damage  has  resulted. 
Thus,  one  is  liable  for  trespass  if  he  merely  walks  across  another's 
field,  though  he  does  absolutely  no  damage;  ^^  and  one  who  breaks 
a  contract  is  liable  in  damages,  though  the  breach  actually  results 
in  a  benefit  to  the  other  party.^^  It  is  equally  clear  that  in  many 
cases  conduct  is  not  actionable,  i.  e.  wrongful  in  law,  unless  followed 
by  damage.  Thus,  negligence  is  not  actionable,  unless  it  results  in 
damage.*"  It  is  therefore  sometimes  said  that  there  are  two  kinds 
of  wrongs,  according  as  damage  is  or  is  not  an  essential  element,  and 
two  kinds  of  rights  corresponding, — absolute  rights  and  the  right 
not  to  be  harmed.*^      It  has  been  well  said  that  uo  more  unsatisfac- 

3  7  Ante,  p.  8. 

3  8  "So  a  man  shall  have  an  action  against  another  for  riding  over  his 
ground,  though  it  do  him  no  damage;  for  it  is  an  invasion  of  his  property, 
and  the  other  has  no  right  to  come  there."  Holt,  C.  J.,  in  Ashby  v.  White,  Ld.. 
Uaym.  938.  955.  "There  is  no  doubt  that  a  right  of  action  accrues  whenever 
a  person  interferes  with  his  neighbor's  rights,  as,  for  example,  by  stepping  on 
his  land;  *  *  *  and  this  though  no  actual  damage  may  result."  Jb^rle,  C.  J., 
in  Smith  v.  Thackerah,  L.  R.  1  G.  P.  5G4,  5UG.  See.  also,  Dixon  v.  Clow,  24 
Wend.  188;  McAneany  v.  .Tewett,  10  Allen,  151;  Carter  v.  Wallace,  2  Tex.  20U. 

3  9  Hibbard  v.  W.  U.  Tel.  Co.,  33  Wis.  558.  For  the  technical  breach  of  a 
bond,  though  without  damage,  nominal  damages  may  be  recovered.  State  v. 
Reinhardt,  31  Mo.  95.  Though  a  trespass  result  in  benefit,  instead  of  damage, 
plaintife  is  entitled  to  recover.  Jewett  v.  Whitney,  43  Me.  242;  Jones  v.  Hnn- 
novan,  55  Mo.  402;   Murphy  v.  Fond  du  Lac,  23  Wis.  305. 

•*o  "Mere  negligent  driving  in  itself,  if  accompanied  by  no  injury  to  the  plaiu- 
tiff,  was  not  actionable  at  all,  for  it  was  not  a  wrongful  act  at  all  till  a 
wrong  arose  out  of  the  damage  which  it  caused  "  Brunsdon  v.  Humphrey.  14 
Q.  B.  Div.  141,  1.50. 

■*!  Mr.  .Jaggard  says  in  his  work  on  Torls,  at  page  80:  "The  simple  truth  i.s 
that  sometimes  plaintiff  can  recover  when  lie  has  not  shown  damage,  and 
sometimes  he  cannot.  On  the  one  hand,  mere  damage  may  not  constitute  a 
cause  of  action,  in  the  absence  of  violation  of  duty.  On  the  other  hand,  mere 
violation  of  duty  may  not  constitute  a  cause  of  action,  in  the  absence  of  d.-ini- 
age.     There  may  be  no  such  thing  as  a   li-g.-ii   wrong   without   d.'image,   l)ut 


12  DEFINITIONS    AND    GENERAL    PRINCIPLES.  (Ch     1 

torj  distinction  could  be  devised.*^  The  true  solution  of  the  diffi- 
culty is  to  be  found  in  the  principle  of  presumption  of  damage.  "In 
some  cases,  from  the  very  nature  of  the  case,  the  law  conclusively 
presumes  damage;  that  is,  the  plaintiff  is  not  put  to  the  trouble 
of  proving  it.  In  other  cases  the  law  does  not  presume  damage; 
that  is,  the  plaintiff  is  required  to  prove  its  existence.  This  being 
so,  the  right,  as  we  have  already  pointed  out,  is,  in  all  cases,  not  to 
be  injured ;  in  my  person,  my  reputation,  or  my  property,  as  the  case 
may  be."  *^  Accurately  speaking,  there  is  no  such  thing  as  injuria 
sine  damno,**  because  injuria  imports  damnum.*^  Whenever  a 
legal  right  is  violated,  damage  is  necessarily  done. 

LAWFUL  AND  UNLAWFUL  CONDUCT. 

4.  For  the  purpose  of  determining  -wrhat  conduct  is  action- 
able,— i.  e.  -wrongful  in  law, — conduct  may  be  di- 
vided into  three  classes: 

(a)  Authorized  conduct  (p.  12). 

(b)  Forbidden  conduct  (p.  15). 

(c)  Conduct  neither  authorized  nor  forbidden  (p.  19). 

SAME-AUTHORIZED  CONDUCT. 

6.  Damage  necessarily  incident  to  authorized  conduct  does 
not  constitute  a  cause  of  action.  It  is  damnum 
absque  injuria. 

For  the  benefit  of  society  at  large,  and  to  prevent  a  clash  between 
rights  of  individuals,  certain  conduct  is  expressly  authorized  by  law. 

sometimes  there  cannot  be  a  legal  wrong  unless  there  has  been  damage.  In 
some  cases  the  law  presumg^s  damage,  and  in  some  cases  damages  must  be 
proved.  In  other  words,  there  are  two  kinds  of  rights, — one,  a  simple  right,  the 
infringement  of  which  is,  in  the  absence  of  exceptional  circumstances,  neces- 
sarily actionable;  the  other  is  a  right  not  to  be  harmed,  the  violation  of  which 
is  actionable  only  when  harm  is  suffered." 
4  2  Pig.  Torts,  126. 

43  Id. 

4*  Salmond,  Jur.  1G9;  Innes,  Torts. 

4  5  Webb  V.  Portland  Manuf'g  Co.,  3  Sumn.  189,  Fed.  Gas.  Xo.  17,322. 


§    5)  AUTHORIZED    CONDUCT.  13- 

Damage  necessarily  caused  by  such  authorized  conduct  will  not  sup- 
port an  action.  It  is  damnum  absque  injuria.  Its  infliction  is  not 
a  legal  wrong.* °  Conduct  may  be  authorized  either  by  statute  or 
by  common  law.  For  damage  resulting  from  the  proper  exercise  of 
statutory  authority  no  action  lies.*'  Thus,  annoyance  from  noise, 
smoke,  and  disturbances  necessarily  attending  the  operation  of  a  rail- 
road under  its  franchise,  and  its  interference  with  property,  is  dam- 
num absque  injuria;*®  but,  if  the  road  be  operated  without  au- 
thority, liability  attaches.*^  So,  also,  where  a  local  nuisance  is 
authorized  by  statute,  its  maintenance  is  not  actionable.^"  The 
common  law  authorizes  many  acts  which  harm  another.  Harm  nec- 
essarily caused  by  the  exercise  of  one's  ordinary  rights  will  not  sup- 
port an  action.  For  example,  damage  consequent  upon  competition 
in  trade  is  not  actionable,  for  every  one  is  authorized  to  engage  in 

4c  Jagg.  Torts,  p.  139  et  seq.,  exhaustively  collecting  and  discussing  cases. 

47  Managers  v.  Hill,  L.  R.  6  App.  Cas.  193;  Gaslight  &  Coke  Co.  v.  Vestry  of 
St.  Mary  Abbott's,  15  Q.  B.  Uiv.  1,  5;  J.  S.  Keator  Lumber  Co.  v.  St.  Croix  Boon> 
Corp.,  72  Wis.  62,  38  N.  W.  529;  Hamilton  v.  Railroad  Co.,  119  U.  S.  280,  7 
Sup.  Ct.  20G;  Sedalia  Gaslight  Co.  v.  Mercer,  48  Mo.  App.  644;  Beseman  v. 
Pennsylvania  R.  Co.,  50  N.  J.  Law,  235,  20  Atl.  109;  Durand  v.  Borough  of 
Ansonia,  57  Conn.  70,  17  Atl.  283;  Iron  Mountain  R.  Co.  v.  Bingham,  87  Tenu. 
522,  11  S.  W.  705;  Bell  v.  Norfolk  S.  R.  Co.,  101  N.  C.  21,  7  S.  E.  407;  Jone& 
V.  St.  Louis  R.  Co.,  84  Mo.  151;  Slatten  v.  Des  Moines  Valley  R.  Co.,  29  Iowa. 
148,  154;  Richardson  v.  Vermont  Cent.  R.  Co.,  25  Vt.  465;  Ellis  v.  Iowa  City, 
29  Iowa,  229;  Hatch  v.  Vermont  Cent.  R.  Co.,  25  Vt.  49;  Dodge  v.  Essex  Co., 
3  Mete.  (Mass.)  380.  Perhaps  the  best  illustration  of  the  absence  of  liability 
for  damages  incident  to  authorized  act  is  to  be  found  in  the  contrast  of  Ry- 
lands  V.  Fletcher,  L.  R.  3  H.  L.  330,  with  the  Zemindar  Case,  L.  R.  1  Indian 
App.  304. 

48  Atchison  &  N.  R.  Co.  v.  Garside,  10  Kan.  552;  Carroll  v.  Wisconsin  Cent. 
R.  Co..  40  Minn.  108,  41  N.  W.  001;  Beideman  v.  Atlantic  City  R.  Co.  (N.  .7. 
Ch.i  19  Atl.  731. 

4  9  Jones  V.  Railway  Co.,  L.  R.  3  Q.  B.  733. 

BO  Fertilizing  Co.  v.  Hyde  Park.  97  U.  S.  059;  Hinchman  v.  Patterson  Horse 
R.  Co.,  SO  Am.  Dec.  252;  Managers  of  the  Metropolitan  Asylum  Dlst.  v.  Hill, 
6  App.  Cas.  193;  Truman  v.  Railway  Co.,  29  Ch.  Div.  89-108.  11  App.  Cas.  45; 
Biscoe  V.  Railway,  L.  R.  16  Eq.  630;  Cogswell  v.  Railroad  Co..  103  N.  Y.  10, 
8  N.  E.  .537;  Edmondson  v.  City  of  Moberly,  98  Mo.  523,  11  S.  W.  990;  East- 
man v.  Amoskeag  Manuf'g  Co.,  82  Am.  Dec.  201;  Bancroft  v.  City  of  Cam- 
bridge, 126  Mass.  438.  Where  a  bridge  constructed  in  accordance  with  legisla- 
tive auttjority  interferes  with  navigation,  the  injury  to  private  persons  Is  dam- 


14  DEFINITIONS    AND    GENERAL    PRINCIPLES.  CCll.    1 

business;"  nor  does  liability  attach  to  the  ordinary  use  of  one's 
property.^-  Private  persons  are  sometimes  authorized  to  exercise 
disciplinary  powers.  Thus,  the  master  of  a  ship  is  not  liable  for 
force  used  in  maintaining  order  and  discipline,^^  and  parents  or 
persons  in  loco  parentis  may  enforce  discipline  by  moderate  chas- 
tisement or  detention.'*  "The  rights  of  necessity  are  a  part  of  the 
law.''  ^•''  There  is  no  liability  for  acts  or  omissions  as  to  which  a 
person  has  no  option.^ ^      Thus,  w  hen  a  highway  becomes  obstructed 

uum  absque  injuria.  Hamiltou  v.  Railroad  Co.,  115)  U.  S.  280,  7  Sup.  Ct.  2UG; 
Kliea  V.  Railroad  Co.,  50  Fed.  20;  U.  S.  v.  North  Bloomlield  Gravel  Min.  Co., 
5'6  Fed.  G27. 

51  Gloucester  Grammar  Scliool  Case  (1410-11),  Y.  B.  11  Hen.  IV.  p.  47,  pi. 
21;  Mogul  S.  S.  Co.  v.  McGregor,  23  Q.  B.  Div.  598.  See,  also,  Chasemore  v. 
Richards,  7  H.  L.  Cas.  349. 

5- A  blacksmith  may  operate  his  forge,  aud  a  merchant  his  store,  without 
liability,  although  neighbors  thereby  suffer  annoyance.  Doelluer  v.  Tynan,  38 
How.  Prac.  (N.  S.)  1S2;  Smith  v.  Ingersoll  Drill  Co.,  7  Misc.  Rep.  374,  27  N. 
Y.  Supp.  907,  collecting  cases;  McGuire  v.  Bloomingdale,  8  Misc.  Rep.  478,  29 
N.  Y.  Supp.  580. 

53  The  Agincourt,  1  Hagg.  Adm.  271-274;  Bangs  v.  Little,  1  Ware,  50G,  Fed. 
Cas.  No.  839;  U.  S.  v.  Alden,  1  Spr.  95,  Fed.  Cas.  No.  14,427;  Cushmau  v. 
Ryan,  1  Story,  91,  Fed.  Cas.  No.  3,515;  Turner's  Case,  1  Ware,  83,  Fed.  Cas. 
No.  14,248;  Wilson  v.  The  Mary,  Gilp.  31,  Fed.  Cas.  No.  17,823;  Michaelson 
V.  Denison,  3  Day  (Conn.)  294;  Brown  v.  Howard,  14  Johns.  (N.  Y.)  119; 
Sampson  v.  Smith,  15  Mass.  365;  Flemming  v.  Ball,  1  Bay  (S.  C.)  3;  Mathews 
V.  Terry,  10  Conn.  455;  State  v.  Board  of  Education,  63  Wis.  234,  23  N.  W. 
102;  Allen  v.  Hallet,  1  Abb.  Adm.  573;  Payne  v.  Allen,  1  Spr.  304,  Fed.  Cas. 
No.  10,8.55;  Schelter  v.  York,  Crabbe,  449,  Fed.  Cas.  No.  12,446;  Jay  v.  Almy, 
1  Woodb.  &  M.  262,  Fed.  Cas.  No.  7,236;  Butler  v.  McLellan,  1  Ware,  219. 
Fed.  Cas.  No.  2,242;    Buddington  v.  Smith,  13  Conn.  334. 

54  Cooley,  Torts,  197;  Johnson  v.  Slate,  2  Humph.  283;  Winterburn  v. 
Brooks,  2  Car.  &  K.  16. 

f>5  Respublica  v.  Sparhawk.  1  Dall.  357-362;  Mouse's  Case,  12  Coke,  63; 
Burton  v.  McClellan,  3  111.  434;  American  Print  Works  v.  Lawrence,  23  N.  J. 
Law,  604. 

5  0  The  destruction  of  property  for  the  public  good  is  authorized  by  neces- 
sity. Case  of  Prerogative,  12  Coke,  13;  Maleverer  v.  Spinke,  Dyer,  36b;  Mc- 
Donald V.  City  of  Red  Wing,  13  Minn.  38  (Gil.  25);  Bowditch  v.  Boston, 
101  U.  S.  16;  Metallic  Compression  Casting  Co.  v.  Fitchburg  R.  Co.,  109  Mass. 
277;  Hyde  Park  v.  Gay,  120  Mass.  590;  Surocco  v.  Geary,  3  Cal.  70;  Amer- 
ican Print  Works  v.  Lawrence,  23  N.  J.  Law,  590;  Beach  v.  Trudgain.  2 
Grat.  (Va)  219;  Hale  v.  Lawrence.  23  N.  J.  Law.  590.  And  see  Arundel  v.  Mc- 
Oulloch.  10  Mass.  70;    Campbell  v.  Race,  7  Cush.  (Mass.)  408;    Mouse's  Case. 


§    6)  FORBIDDEN    CONDUCT.  15 

find  impassable,  a  traveler  is  authorized  to  go  on  adjoining  lands 
to  avoid  the  obstruction,  and  hence  he  is  not  liable  for  trespass.^' 
The  law  also  authorizes  one  to  repel  unlawful  or  dangerous  force 
by  force,  in  the  defense  of  person,  property,  or  possession,  whenever 
there  is  a  real  or  an  apparent  necessity,  honestly  believed  to  be 
real,  for  the  defense.  For  example,  where  one  acting  in  self-defense 
accidentally  shoots  an  innocent  bystander,  he  is  not  liable  if  guilty 
of  no  negligence.^'  In  all  these  cases,  the  act  being  expressly  de- 
clared to  be  lawful,  the  harm  necessarily  resulting  is  damnum 
absque  injuria,  or  "damage  without  legal  wrong."  It  is  the  price 
men  pay  for  the  benefits  of  society. 


SAME— FORBIDDEN  CONDUCT. 

6.  An  action  lies  to  recover  damages  for  forbidden  con- 
duct by  the  person  for  -wrliose  benefit  the  conduct 
■was  forbidden,  -without  proof  that  actual  damage 
resulted.     The  law  conclusively  presumes  damage. 

12  Coke,  63;  Respublica  v.  Sparhawk,  1  Ball.  357;  Taylor  v.  Plymouth,  8 
Mete.  (Mass.)  462.  As  to  statutory  changes,  see  Fisher  v.  Boston,  104  Mass. 
87.  "There  are  mauy  cases  iu  which  individuals  sustain  an  injury  for  which 
the  law  gives  no  action;  for  instance,  pulling  down  houses,  or  raising  bulwarks 
for  the  preservation  of  the  kingdom  against  the  king's  enemies.  *  *  *  This 
is  a  case  to  which  the  maxim  applies,  'Salus  populi  suprema  lex  est.'  "  Butler. 
J.,  in  Governor,  etc.,  British  Cast  Plate  Manufacturers  v.  Meredith,  4  Term 
R.  794,  797.  See,  also,  12  Coke,  12,  13;  Dyer,  60b;  Russell  v.  Mayor,  etc., 
of  City  of  New  York,  2  Denio,  461.  And  see  the  opinion  of  Butler,  J.,  in  Tay-' 
lor  V.  Whitehead,  2  Doug.  745,  749.  Peril  to  human  life  may  constitute  such 
necessity  as  will  excuse  what  would  otherwise  be  wrongdoing.  Metropolitan 
Asylum  Dist.  v.  Hill,  L.  R.  6  App.  Cas.  193-205;  Eckert  v.  Long  Island  R. 
Co.,  43  N.  Y.  .502;  Pennsylvania  Co.  v.  Roney,  SO  Ind.  453;  Clark  v.  Famous 
Shoe  &  Clothing  Co.,  16  Mo.  App.  463. 

8  7  Donahoe  v.  Wabash,  St  L.  &  P.  Ry.  Co.,  8.3  Mo.  560;  BuUard  v.  Harrison, 
4  Maule  &  S.  387-393;  Campbell  v.  Race.  7  Cush.  (Mass.)  408;  Burd.  Load. 
Cas.  136.  As  to  ways  of  necessity,  see  Bish.  Noucont.  Law,  872;  Vosscn  v. 
Dautel,  116  Mo.  379.  22  S.  W.  734;  Camp  v.  Whitman  (N.  J.  Ch.)  26  Atl.  917; 
Lankins  v.  Terwilliger,  22  Or.  97,  29  Pac.  26S. 

58  Morris  v.  Piatt,  32  Conn.  75;  Paxtou  v.  Boycr,  67  111.  132;  Scott  v.  Shop- 
herd,  2  W.  Bl.  892.  As  to  damage  caused  In  trying  to  avoid  missile,  see  Vallc 
■V.  United  States  Kxp.  Co.,  117  Pa.  St.  401,  23  Atl.  5!) I. 


16  DEFINITIONS    AND    GENEUAL    PRINcirLES.  (Ch.   I 

7.  Where  conduct  is  forbidden  for  the  benefit  of  the  pub- 
lic,— that  is,  where  a  public  duty  is  created, — an 
individual  cannot  maintain  an  action  for  its  breach  ^ 
unless  he  sustains  special  damage  thereby. 

For  reasons  essentially  of  iniblic  policy,  to  prevent  breaches  of 
the  peace,  and  because  its  necessary  or  probable  effect  is  damage 
to  some  one,  the  law  absolutely  forbids  certain  conduct.  A  duty 
is  imposed  on  all  members  of  the  community  to  refrain  from  such 
conduct,  and  the  correlative  right  to  have  them  refrain  arises  on 
the  part  of  those  for  whose  benefit  the  duty  is  created.  These  rights 
correspond  to  "absolute  rights"  in  the  classification  of  those  writers- 
who  divide  rights  into  absolute  rights  and  rights  not  to  be  harmed.^®' 
From  their  violation,  the  law  conclusively  presumes  that  some  dam- 
age has  resulted.*'"     In  this  class  of  cases  therefore,  it  is  sufficient 

GO  It  will  be  convenient  to  sometimes  use  the  term  "absolute  rights"  to  des- 
ignate the  rights  corresponding  to  forbidden  conduct.  There  is  no  objection  tO' 
the  term  if  it  is  understood  that  it  merely  stands  for  specialized  instances 
of  the  right  to  immunity  from  harm. 

60  "Every  injury  imports  a  damage,  though  it  does  not  cost  the  party  one 
farthing."  Lord  Holt,  in  Ashby  v.  White,  2  Ld.  Raym.  055.  "I  can  veiT 
well  understand  that  no  action  lies  in  case  where  there  is  damnum  absque 
injuria;  that  is,  where  there  is  damage  done  without  any  wrong  or  violation 
of  any  right  of  the  plaintiff.  But  I  am  not  able  to  understand  how  it  can  cor- 
rectly be  said  (in  a  legal  sense)  that  an  action  will  not  lie  even  in  a  case  of 
a  wrong  or  violation  of  a  right,  unless  it  is  followed  by  some  perceptible  dam- 
age which  can  be  established  as  a  matter  of  fact;  in  other  words,  that  injuria 
sine  damno  is  not  actionable.  On  the  contrary,  from  my  earliest  reading  1 
have  considered  it  laid  up  among  the  very  elements  of  the  common  law  that 
wherever  there  is  a  wrong  there  is  a  remedy  to  redress  it,  and  that  every 
injury  imports  damage  in  the  nature  of  it;  and,  if  no  other  damage  is  estab- 
lished, the  party  injured  is  entitled  to  a  verdict  for  nominal  damages."  Jus- 
tice Story,  in  Webb  v.  Portland  Manuf'g  Co.,  3  Sumn.  1S9,  Fed.  Cas.  No.  17,- 
322,  and  Mechem,  Cas.  Dam.  3.  When  it  is  understood  that  the  right  vio- 
lated is  in  all  cases  a  right  to  immunity  from  harm,  it  will  readily  be  con- 
ceded that  "every  injury  imports  damage  in  the  nature  of  it";  but  the  phrase 
does  not  tell  us  a  great  deal,  for  the  fact  remains  that  in  many  cases  damage 
must  be  proved  to  show  an  injury  (wrong).  The  learned  judge  evidently  re- 
ferred to  those  absolute  or  specialized  rights  which  are  correlative  to  a  prohi- 
bition. "Actual,  perceptible  damage  is  not  indispensable  as  the  foundation  of 
an  action;  It  Is  sufficient  to  show  the  violation  of  a  right,  in  which  case  the 
law  will  presume  damage;    injuria  siue  damno  is  actionable."     Per  Park.  B.. 


§§    6-7)  FORBIDDEN    CONDUCT.  17 

to  simply  prove  the  conduct,  proof  of  damage  being  relevant  with 
respect  to  the  amount  of  compensation  recoverable,  but  not  with 
respect  to  the  existence  of  the  cause  of  action.  In  all  other  cases 
the  law  indulges  in  no  presumption,  but  leaves  the  party  complain- 
ing of  a  wrong  to  prove  it  by  showing  the  presence  of  both  its  es- 
sential elements, — the  conduct  itself  and  the  resulting  damage. 
Cases  of  defamation  afford  a  good  illustration  of  the  principle  under 
discussion.  Damage  is  such  a  probable  consequence  of  certain 
slanderous  and  libelous  statements  that  the  law  absolutely  forbids 
them.  These  statements  are  said  to  be  actionable  per  se.  Proof 
of  their  utterance,  without  more,  is  sufficient  to  sustain  an  action, 
for  the  law  presumes  the  damage.*'"  Other  false  and  defamatory 
statements  may  cause  harm,  but  the  harm  is  not  such  a  probable 
or  necessary  consequence.  The  law  therefore  does  not  specifically 
forbid  such  statements,  and,  to  maintain  an  action  therefor,  both 
the  words  and  the  resulting  damage  must  be  proved.®*      Assaults, 

iu  Embfey  f.  Owen.  G  Exch.  353;  McLeod  v.  Boulton,  3  U.  C.  Q.  B.  84;  Whip- 
ple V.  Cumberland  Manuf'g  Co.,  2  Story,  GGl,  Fed.  Cas.  No.  17,510;  Basby  v. 
Harris,  9  Ala.  173;  Paul  v.  Slason,  22  Vt.  231;  Cory  v.  Silcox,  G  Ind.  39;  Lit- 
tle V.  Stanback,  G3  X.  C.  285. 

S3  Henkle  v.  Scbaub,  94  Mlcb.  542,  54  N.  W.  293;  Smith  v.  Sun  Printing  i^t 
Pub.  Ass'n.  5  C.  C.  A.  91,  55  Fed.  240;  Wynne  v.  Parsons,  57  Conn.  73,  17  Atl. 
3G2;  Newell,  Defaui.  181.  To  accuse  one  in  print  of  lying  is  actionable  per 
se.  Riley  v.  Lee,  88  Ky.  603,  11  S.  W.  713;  Prosser  v.  Callis,  117  Ind.  105. 
'  19  N.  E.  735.  So  to  call  a  man  a  "skunk,"  Massuere  v.  Dickens,  70  Wis.  83, 
35  N.  W.  349;  or  a  "swindler,"  Jauson  v.  Stiiart,  1  Term.  K.  74S;  Smith  v. 
Stewart,  41  Minn.  7.  42  N.  W.  595. 

6*  Katcliffe  v.  Evans  [1892]  2  Q.  B.  524;  Daniel  v.  Now  York  News  Pub. 
Co.,  G7  Hun,  649;  21  N.  Y.  Supp.  8G2;  Bradstreet  Co.  v.  Gill.  72  Tex.  Ill),  9  S. 
W.  753;  Brown  v.  Durham,  3  Tex.  Civ.  App.  244,  22  S.  W.  8G8;  iianey  Manut'g 
Co.  V.  Perkins,  78  Mich.  1,  43  N.  W.  1073.  Defamatory  words  that  harm  no 
one,  even  if  false,  are  not  actionable;  as  where  they  were  uttered  in  the  pres- 
ence of  the  slandered  person  only,  Sliettill  v.  Van  Deusen,  l.'J  (iray,  304;  or  in 
a  foreign  language,  wliich  was  not  understood.  Kiene  v.  Huff,  1  Iowa,  482. 
Burdick,  Lead.  Cas.  Torts,  215;  Warmouth  v.  Cramer,  3  Wend.  395;  Townsh. 
Sland.  &  L.  (4th  Ed.)  94;  1  Starkic.  Sland.  &  L.  3G1.  Defamatory  words 
spoken  by  a  lunatic,  whose  insanity  was  obvious,  or  known  1o  all  llic  liearcrs, 
are  not  actional)le.  Dickinson  v.  Harbor,  9  Mass.  224-227;  Bry.-iiit  v.  .I:i<  k- 
son,  6  Humph.  199;  Yoatos  v.  Ilof-d,  4  Blackf.  4(>!.  So.  also,  of  words  spoken 
or  understood  as  a  jost.  Donoghiio  v.  Hayes,  2(;5.  Sec,  also,  Mrodcrick  v. 
Tames,  3  Daly.  481;    Myors  v.  Dresden,   10  Iowa,  G(>0;    \aii  Kons.soliior  v.  l)f)kv 

LAW  DAM.— 2 


18  DEFINITIONS    AND    GENERAL    PRINCIPLES.  (Ch.    1 

trespasses,  and  the  like  are  illustrations  of  forbidden  conduct.  To 
enumerate  every  case  in  which  damages  will  be  presumed  "would 
be  to  recapitulate  the  whole  corpus  juris."®" 

PuJdic  Wrongs. 

Where  a  public  duty  is  created, — that  is,  where  conduct  is  pro- 
hibited for  the  benefit  of  the  community  at  large, — an  individual 
cannot  maintain  an  action  for  its  breach.  The  remedy  is  by  in- 
dictment on  behalf  of  the  public.  The  law  gives  no  private  remedy 
for  anything  but  a  private  wrong.*'"  The  reason  is  one  of  public 
policy,  and  is  well  stated  by  Lord  Coke  in  regard  to  public  nui- 
sances.®^ "A  man  shall  not  have  an  action  on  the  case  for  a  nui- 
sance done  in  the  highway,  for  it  is  a  common  nuisance,  and  then 
it  is  not  reasonable  that  a  particular  person  should  have  the  action, 
for,  by  the  same  reason  that  one  person  might  have  an  action  for 
it,  by  the  same  reason  every  one  might  have  an  action,  and  then 
he  would  be  punished  a  hundred  times  for  one  and  the  same  cause." 
Where,  however,  the  breach  of  a  public  duty  results  in  special  and 
I>eculiar  damage  to  an  individual,  he  may  maintain  an  action,  for 
all  the  elements  of  an  actionable  wrong  are  present,  and  no  prin- 
ciple of  public  policy  prevents.®*  It  devolves  upon  plaintiff  to  bring 
himself  within  the  exception.  He  must  allege  and  prove  that  he 
has  suffered  special  and  peculiar  damage.  The  law  will  not  pre- 
sume it.®®  The  right  to  maintain  the  action  does  not  depend  on 
the  number  injured,  but  upon  the  personal  character  of  the  injury.^® 

1  Johns.  Cas.  279;  Chase  v.  Whitlock,  3  Hill,  139;  Sheffill  v.  Van  Deusen,  13 
Gray,  304. 

6  5  Sedg.  Dam.  §  98. 

68  3  Bl.  Ck)mm.  219;    4  BI.  Comm.  107;    Broom,  Leg.  Max.  206. 

«T  Williams'  Case,  5  Coke,  72.     See,  also,  Iveson  v.  Moore,  1  Salk.  15. 

08  "Where  one  suffers  in  common  with  all  the  public,  altliough  from  his 
proximity  to  the  obstructed  way,  or  otherwise,  from  his  more  frequent  occasion 
to  use  it,  he  may  suffer  in  a  greater  degree  than  others,  still  he  cannot  have 
an  action  because  it  would  cause  such  a  multiplicity  of  suits  as  to  be  itself 
an  intolerable  evil.  But  when  he  sustains  a  special  damage  differing  in  kind 
from  that  which  is  common  to  others,  as  where  he  falls  into  a  ditch  unlaw- 
fully made  in  the  highway,  and  hurts  his  horse,  or  sustains  a  personal  Iniui'y. 
then  he  may  bring  his  action."  Proprietors  of  Quincy  Canal  v.  Newcoiiib.  7 
Mete.  (Mass.)  270. 

6  9  Winterbottom  v.  Derby.  L.  R.  2  Exch.  316. 

^0  Cooley,  Torts,  102;    Henly  v.  Mayor,  etc.,  of  Lyme,  5  Bing.  91,  3  Barn.  Sc 


§    8)  CONDUCT    NEITHER    AUTHORIZED    NOR    FORBIDDEN.  19 

'If  many  persons  receive  a  private  injury  by  a  public  nuisance, 
everyone  shall  have  his  action."  ^^  The  nature  of  the  special  dam- 
age pertains  rather  to  the  right  of  action  than  the  measure  of  dam- 
ages, and  with  it  we  are  not  specially  concerned. 


SAME— CONDUCT  NEITHER  AUTHORIZED  NOR  FORBIDDEN. 

8.  An  action  may  be  maintained  for  damage  caused  by 
conduct  which  is  neither  authorized  nor  forbidden, 
provided  it  was 

(a)  Malicious  (p.  20), 

(b)  Negligent  (p.  21),  or 

(c)  Done  at  peril  (p.  21). 

Between  the  two  classes  of  conduct  expressly  authorized  by  law 
and  conduct  expressly  forbidden,  there  is  a  third  class,  comprising 
the  great  mass  of  human  actions,  in  which  the  conduct  is  neither 
expressly  authorized  nor  forbidden,  and  in  which  liability  for  con- 
sequences must  be  referred  directly  to  the  great  fundamental  right 
of  immunity  from  harm.  This  class  corresponds  to  the  second 
division  in  the  classification  of  rights  into  absolute  rights  and  rights 
not  to  be  harmed.  In  it,  damage  is  never  presumed,  but  must  be 
jtrovtMl,  or  the  violation  of  a  right  is  not  shown.  The  law,  how- 
(vci-,  has  not  undertaken  the  impossible  task  of  insuring  against 
nil  harm.  It  recognizes  the  fact  that  unfortunate  accidents  will 
occur,  for  which  no  one  is  to  blame,  and  wisely  and  justly,  in  most 
cases,  leaves  him  to  bear  the  loss  upon  whom  it  has  fallen.  The 
law,  however,  has  pursued  no  consistent  theory  of  liability."  Lia- 
bility is  recognized  in  three  classes  of  cases:  (1)  Where  the  conduct 
was  malicious;  (2)  where  the  conduct  was  negligent;  and  (3)  where 
it  was  done  at  peril.     In  the  first  two  classes,  liability  attaches  on 

Adol.  77;  Nicholl  v.  Allen,  1  Best  &  S.  93G;  McKiuuon  v.  Pcnson,  8  Exch. 
319;   King  v.  Richards,  8  Term  R.  G34. 

-1  Per  Holt,  C.  J.,  in  Aslaby  v.  White,  Ld.  Rayra.  9:58.  9^5.  See,  also,  Wil- 
liams' Case,  5  Coke,  73;    Co.  Litt.  fida;    Corloy  v.  Lancaster,  81  Ky.  171. 

"2  Jagg.  Torts,  48.  O.  W.  Holmes,  Jr.,  in  7  Am.  Law  Rev.  (ir>2;  Holmes, 
Com.  Law,  79;  Wabash,  St.  L.  &  V.  Ky.  Co.  v.  Locke,  111*  Ind.  4(>»,  14  N. 
i:.  391. 


20  DEFINITIONS    AND    GENERAL    PRINCIPLKS,  (Ch.    I 

the  theory  of  culpability.  In  the  third  class,  it  attaches  on  the 
theory  that  there  is  a  duty  to  insure  safety.  Each  class  will  be 
considered  briefly. 


9.  MALICIOUS  CONDUCT— An  action  may  be  maintained 
for  damages  caused  by  an  act  done  intentionally 
without  just  cause  or  excuse. 

It  is  a  legal  wrong  lo  do  willful  harm  to  another  without  just 
cause  or  excuse.'^  If  there  exists  a  right  of  immunity  from  harm, 
it  is  clear  that  the  negative  duty  of  nut  doing  willful  harm  must 
also  exist,  subject  to  necessary  exceptions.  Thus,  the  prosecution 
in  good  faith  of  a  groundless  action  is  not  a  legal  wrong  to  defend- 
ant, though  he  is  put  to  large  expense;  ^*  but,  if  the  action  is  prose- 
cuted maliciously  and  without  probable  cause,  it  is  a  legal  wrong. '^ 
Fraud,  deceit,  conspiracy,  strikes,  boycotts,  malicious  interference 
with  contract,  and  the  like,  are  examples  of  conduct  wrongful  in 

7  3  Bo  wen,  L.  J.,  in  Mogul  Steamship  Co.  v.  McGregor,  L.  II.  23  Q.  B.  oDS, 
[1802]  App.  Cas.  25,  citing  Bromage  v.  Prosser,  4  Barn.  &  C.  2i7;  Capital, 
etc..  Bank  v.  Henty,  L.  R.  7  App.  Cas.  74.  This  statement  avoids  the  common 
principles,  for  example,  as  in  1  Add.  c.  1,  §  9,  p.  3G  (40).  "But  every  malicious 
act  wrongful  in  itself  in  the  eyes  of  the  law,  if  it  causes  hurt  or  damage  to 
another,  is  a  tort,  and  may  be  the  foundation  of  an  action."  An  act  wrongful 
in  itself  producing  damage  is  naturally  actionable.  Generally,  Jagg.  Torts. 
555;  Clerk  &  L.  Torts,  16;  Green  v.  Button,  2  Cromp.,  M.  &  R.  707;  Cattle 
V,  Stockton  Waterworks  Co.,  L.  R.  10  Q.  B.  43.  An  interesting  article  on  the 
right  to  so  maliciously  exercise  one's  legal  rights  as  to  cause  damage  to  oth- 
ers, and  the  remedy  therefor,  58  J.  P.  814. 

74  Woodmansie  v.  Logan,  2  N.  J.  Law,  SO;  Muldoon  v.  Rickey.  10;j  Pa.  St. 
110;    Eberly  v.  Rupp.  90  Pa.  St.  259. 

•^5  In  an  action  for  malicious  prosecution,  malice  must  be  alleged  and  prove.l. 
Saxon  V.  Castle,  6  Adol.  &  El.  652;  Page  v.  Wiple,  3  East,  314;  Vanduzor  v. 
Linderman,  10  Johns.  106.  Emerson  v.  Cochran,  111  Pa.  St.  619,  4  Atl.  49.S. 
Malice  is  a  distinct  issue.  Smith  v.  Maben,  42  Minn.  516,  44  X.  W.  792;  Coop- 
er V.  Hart,  147  Pa.  St.  594,  23  Atl.  833.  The  burden  of  proving  malice  is  on 
the  plaintiff.  2  Greenl.  Ev.  §  449;  Barton  v.  Kavanaugh,  .12  La.  Ann.  332; 
Mitchell  V.  Jenkins.  5  Barn.  &  Adol.  588;  Whalley  v.  Pepper,  7  Car.  &  P.  506; 
Walker  v.  Cruikshank,  2  Hill,  297;  Melvin  v.  Chancy  (Tex.  Civ.  App.)  28  S. 
\V.  241;  Barber  v.  Scott  (Iowa)  60  N.  W.  497;  ^^■elsh  v.  Cheek  (N.  C.)  20  S- 
E.  4G0;    Womack  v.  Fudikar,  47  La.  Ann.  33,  16  South.  615. 


§11)  CONDUCT    NEITHER    AUTHORIZED    NOR    FORBIDDEN.  21 

law,  because  of  malice  and  resulting  damage.     If  either  is  absent, 
the  wrong  is  not  complete.'^ 

10.  NEGLIGENT    CONDUCT  — An    action  may  be  main- 

tained for  damage  caused  by  negligent  conduct. 

The  law  imposes  the  general  duty  of  exercising  due  care  to  avoid 
harm.  Whenever  damage  results  from  a  failure  to  exercise  such 
care,  a  legal  wrong  is  committed.  Negligence  which  does  not  re- 
sult in  damage  is  not  wrongful  in  law\  "Mere  negligent  driving 
in  itself,  if  accompanied  by  no  injury  to  the  plaintiff,  was  not  ac- 
tionable at  all,  for  it  was  not  a  wrongful  act  at  all  till  a  wrong 
arose  out  of  the  damage  which  it  caused.''  ^^  The  principles  in- 
volved in  this  class  of  cases  are  too  familiar  to  require  discussion 
here.'^^ 

11.  CONDUCT  AT  PERIL— An   action  may  sometimes  be 

maintained  for  damage  caused  by  conduct  -which  is 
neither  malicious  nor  negligent.  The  duty  to  avoid 
harm  is  regarded  as  absolute. 

"Perhaps  the  commonest  conception  of  liability  in  tort  is  expressed 
by  the  classical  phrase  that  a  man  acts  at  his  peril.  He  insures 
the  world  against  w'rong  on  his  part.  The  duty  to  avoid  harm  to 
others  is  regarded  as  absolute.  Breach  of  that  duty,  and  conse- 
quent damage,  are  sufficient  to  create  responsibility  without  refer- 
ence to  his  mental  attitude;  that  is,  his  consciousness  or  inten- 
tion. This  view  of  the  law  had  its  origin  in  the  early  Germanic 
conceptions  of  liability.  These  conceptions  inclined  to  the  posi- 
tion that,  whenever  harm  was  done,  some  one  must  be  lield  responsi- 
ble. There  was  no  definite  logic  in  the  selection  of  the  victim. 
The  primitive  notion  instinctively  visited  liability  on  the  visible 
offending  cause,  whatever  it  might  be,  of  a  visible  evil  result."  ^^ 

76. Tap:;;.  Torts,  c.  9,  "Malicious  Wioii^'s." 
-^  Biuusdon  v.  Ilninplucy.  H  Q-  B.  Div.  141,  ir.O. 

T8  For  an  exceptionally  clear  and  concise  discussion  of  tlio  iniiiciplfs  df  lia- 
bilitj-  for  ncf^liiU'iicc.  see  ,]i\iiS.  T"rts,  c.  12. 
TO  Jagg.  Torts,  p.  41). 


22  DEFINITIONS    AND    GENEUAL    PRINCIPLES.  (Cll.    1 

Acts  complained  of  as  nuisances  are  perhaps  the  best  illustration 
of  acts  done  at  peril.  Liability  is  not  at  all  dependent  upon  either 
care  or  motive.^"  Absolute  liability  is  also  recognized  in  a  class 
of  cases  of  which  Fletcher  v.  Rylands  ®^  is  a  type.  In  these  cases 
liability  for  damage  is  dependent  neither  upon  malice  nor  negli- 
gence, but  upon  the  ownership,  use,  custody,  or  control  of  some 
dangerous  instrumentality.^-  Critical  modern  investigation  is  ques- 
tioning and  denying  the  doctrine  of  absolute  liability,  and  many 
exceptions  are  recognized  by  the  courts.^ ^ 


SUMMARY. 

The  substance  of  much  of  the  foregoing  discussion  may  be  sum- 
marized in  the  following  analysis  of  a  legal  wrong. 

80  Upjohn  V.  Board,  46  Mich.  542,  9  N.  W.  845;  Cairncross  v.  Village  of 
rewaukee,  86  Wis.  181,  56  N.  W.  648;  Lamming  v.  Galusha,  135  N.  Y.  23U, 
31  N.  E.  1024.  The  use  of  ordinary  skill  and  caution  in  the  construction  of 
work  (as  draining  surface  water)  will  not  protect  from  liability,  If  there  has 
been  a  failure  to  provide  against  any  damage  which  might  have  been  fore- 
seen. Staton  V.  Norfolk  &  C.  K.  Go.,  Ill  N.  C.  278.  16  S.  E.  181.  Cf.  Gulf.  C. 
&  S.  F.  Ry.  Co.  V.  Steele  (Tex.  Civ.  App.)  26  S.  W.  926.  Contributory  negli- 
gence is  ordinarily  no  defense  to  a  nuisance.  Philadelphia  &  R.  R.  Co.  v. 
Smith,  12  C.  C.  A.  384,  64  Fed.  679.  Cf.  Willis  v.  City  of  Perry  (Iowa)  60  N, 
W.  727. 

81  L.  R.  1  Exch.  265.    Cf.  Losee  v.  Buchanan,  51  N.  Y.  476. 

82  Things  dangerous  in  themselves  may  be  regarded  from  the  point  of  view 
of  nuisance,  negligence,  or  breach  of  duty  to  insure  safety.  Cumberland  Tele- 
phone &  Telegraph  Co.  v.  United  Electric  Ry.  Co.,  42  Fed.  273-281.  The 
opinion  of  Brown,  J.,  in  this  case  is  eminently  clear  and  able.  Van  Norden 
V.  Robinson,  45  Hun,  567.  For  an  able  discussion  of  liability  in  this  class 
of  cases,  see  Jagg.  Torts,  p.  832  et  seq. 

83  Jagg.  Torts,  53;  Pig.  Torts,  c.  7;  Brown  v.  Kendall,  6  Gush.  292;  Harvey 
V.  Dunlop,  Hill  &  D.  193;  Nitro-Glycerine  Case,  15  Wall.  524;  Lansing  v. 
Stone,  37  Barb.  15;  Center  v.  Finney,  17  Barb.  94;  Morris  v.  Piatt,  32  Conn. 
75;  Paxton  v.  Boyer,  67  111.  132;  Dygert  v.  Bradley,  8  Wend.  470;  1  Hill, 
Torts,  c.  5.  §  9:  2  Greenl.  Ev.  85.  See.  also.  Holmes  v.  Mather,  L.  R.  10 
Exch.  261;   Stanley  v.  Powell  [1891]  Q.  B.  Div.  86. 


§§    12-14)  CLASSIFICATION    OF    DAMAGES.  23 

ANALYSIS  OF  LEGAL  WRONGS. 

12.  A  legal  "w^rong  is  committed  ■whenever 

(a)  Conduct  Tvliich  is  either 

(1)  Forbidden, 

(2)  Malicious, 

(3)  Negligent,  or 

(4)  Done  at  peril 

(b)  Results  in  damage,  -which  may  be  either 

(1)  Actual  or 

(2)  Presumed. 

CLASSIFICATION  OF  DAMAGES. 

13.  With  respect  to  their  object,  damages  may  be  divided 

into 

(a)  Compensatory  damages  and 

(b)  Exemplary  damages. 

14.  With  respect  to  amount,  compensatory  damages   may 

be  divided  into 

(a)  Nominal  damages  and 

(b)  Substantial  damages. 


24  NOMINAL    DAMAGES.  (Cll.   2 


CHAPTER  II. 

NOMINAL  DAMAGES. 
15-17.    Definition  and  General  Nature. 

DEFINITION  AND  GENERAL  NATURE. 

15.  Nominal  damages  are  damages  insignificant  in  amount; 

a  sum  of  money  that  can  be  spoken  of,  but  has  no 
existence  in  point  of  quantity. 

16.  Nominal  damages   are   a^varded   only  in   cases   -where 

the  la-w  presumes  damage.  "Whenever  the  law  pre- 
sumes damage,  it  presumes  the  lowest  possible 
amount;  that  is,  nominal  damages. 

17.  Whenever  damages  must  be  proved  to  show  the  vio- 

lation of  a  legal  right,  proof  of  nominal  damage 
will  not  support  an  action.  The  law  applies  the 
maxim,  "De  minimis  non  curat  lex." 

It  is  a  fundamental  principle  of  the  law  of  damages  that,  when- 
ever one's  rights  have  been  invaded,  he  is  entitled  to  compensation 
proportional  to  the  amount  of  the  injury.^  The  extent  of  actual 
injury  is  usually  a  question  of  fact.-  In  the  absence  of  proof,  the 
law  can  seldom  say  that  a  given  wrong  has  resulted  in  damage 
of  a  definite  amount.  But,  as  has  been  seen,  in  many,  and  perhaps 
most,  cases,  proof  of  damage  is  essential  to  the  proof  of  a  legal 
wrong.^  In  current  phraseology,  damages  are  the  gist  of  the  ac- 
tion. In  this  class  of  cases,  the  law  awards  the  amount  of  dam- 
ages that  have  been  proved.      But  there  is  another  class  of  cases, 

1  Sedg.  Dam.  28;  Suth.  Dam.  18.  "It  is  a  rational  and  legal  principle  that 
the  compensation  should  be  equivalent  to  the  injury."  Bussy  v.  Donaldson,  4 
Dall.  200.  "It  is  a  general  and  very  sound  rule  of  law  that,  where  an  injury 
fias  been  sustained  for  which  the  law  gives  a  remedy,  that  remedy  shall  be 
commensurate  to  the  injury  sustained."     Koeliwood  v.  Allen,  7  Mass.  254. 

2  Ante,  7. 

3  Ante,  7. 


^§    15-17)  DEFINITION    AND    GENERAL    NATURE.  25 

in  which  damages  are  not  the  gist,  and  need  not  be  proved,  because 
they  are  presumed  by  law.  This  occurs,  as  has  been  seen,  wherever 
the  conduct  complained  of  is  absolutely  forbidden.*  In  this  class 
of  cases  a  wrong  can  be  shown  without  proof  of  damage.  If  no 
damages  in  fact  are  or  can  be  proved,  the  legal  presumption  never- 
theless remains.^  But  the  presumption  is  only  that  some  dam- 
age has  resulted;  the  law  cannot  presume  a  definite  amount. 
"This  requires  some  practical  expression  as  the  compensation  for 
a  technical  injury.  Therefore,  nominal  damages  are  given,  as  six- 
cents,  a  penny,  or  a  farthing, — a  sum  of  money  that  can  be  spoken 
of,  but  has  no  existence  in  point  of  quantity.  Verdicts  and  judg- 
ments for  nominal  damages  generally  specify  a  small  sum  which 
may  be  paid." '  It  is  only  in  cases  where  damages  are  not  of  the 
gist — that  is,  in  cases  of  forbidden  conduct — that  nominal  damages 

*  Ante,  15. 

5  Webb  V.  Portland  Manuf  g  Co.,  3  Sumn.  189,  Fed.  Cas.  No.  17,322;  Lafliu 
V.  Willaid,  16  Pick.  64;  Goodnow  v.  Willard,  5  Mete.  (Mass.)  517;  Lawrence 
V.  Rice,  12  Mete.  (Mass.)  535.  See,  also,  Whittemore  v.  Cutter,  1  Gall.  429, 
433,  Fed.  Cas.  No.  17,600;  Marsh  v.  Billings,  7  Cush.  322;  Davis  v.  Kendall, 
2  R.  I.  566.  Cf.  Paul  v.  Slason,  22  Vt.  231,  Mecbem,  Cas.  Dam.  8.  Where 
an  absolute  right  created  by  the  prohibition  of  certain  conduct  is  violated, 
damage  is  necessarily  done,  for  the  possessor  of  the  right  is  deprived  of  some- 
thing secured  to  him  by  law.  Damage  is  presumed  because  it  is  inevitable 
that  damage  has  resulted,  though  it  cost  the  party  nothing;  "no,  not  so  much 
as  a  litttle  diachylon."  All  damage  is  not  pecuniary.  In  Ashby  v.  White,  Ld. 
liaym.  938,  958,  where  plaintiff  had  been  deprived  of  a  right  to  vote.  Lord 
Holt,  answering  the  objection  that  plaintiff  had  suffered  no  damage,  said; 
•"This  action  is  brought  by  the  plaintiff  for  the  infringement  of  his  franchise. 
You  would  have  nothing  to  be  a  damage  but  what  is  pecuniary,  and  a  dam- 
age to  property;"  but  "a  damage  is  not  merely  pecuniary,  but  an  injury  im- 
ports a  damage  where  a  man  is  thereby  hindered  of  his  right."  Piggott  de- 
fined "damnum"  as  the  violation  of  these  absolute  or  specialized  rights.  I'ig. 
Torts,  10.     See,  also.  Id.,  "Nominal  Damages,"  135. 

6  Suth.  Dam.  18.  "Where  the  law  implies  the  injury,  it  al.so  implies  the 
lowest  damage."  Pastorius  v.  Fisher,  1  Rawle,  27.  And  see  Repka  v.  Ser- 
geant, 7  Watts  &  S.  9.  Where  a  party  fails  to  furnish  ore  to  a  smelting  com- 
I»any  for  a  reduction  at  a  fixed  price,  the  company  cannot  recover  more  than 
nominal  damages,  where  tlie  quality  of  the  ore  was  not  fixed,  unless  tlioy 
prove  the  profits  of  the  smelting  of  whatever  grade  migiit  Ix?  furnished.  Pat- 
rick V.  Colorado  Smelting  Co.  (Colo.  Sup.)  38  Pac.  2:?(!.  See,  also,  Fmser  v 
I>ho  Mining  &  Smelting  Co.  (Tex.  Civ.  App.)  28  S.  W.  71  I. 


26  NOMINAL    DAMAGES.  (Ch.   2- 

can  be  recovered;  ^  for  it  is  only  in  this  class  of  cases  that  a  legal 
wrong  can  be  shown  without  proof  of  actual  damage.  If  substan- 
tial damage  is  shown,  an  equivalent  amount  is  awarded,  and  th& 
principle  of  nominal  damages  is  not  involved.  The  actual  damage 
shown,  however  small,  may  be  recovered.^  If  there  is  in  fact  no 
damage,'  but  rather  a  benefit,^"  nominal  damages  are,  nevertheless^ 
allowed. 

T  In  Brown  v.  Watson,  47  Me.  161,  it  was  held  that  for  an  injury  to  a  pri- 
vate person,  liowever  inconsiderable,  he  may  maintain  an  action.  The  plain- 
tiff in  that  case  had  been  compelled  to  take  a  circuitous  route,  because  of 
obstructions  placed  in  the  road.     He  was  allowed  to  recover. 

8  Defendant  may  attempt  "not  to  defeat  the  action  altogether,  but  to  restrict 
the  amount  of  damages  recovered  to  a  nominal  sum,  by  proving  that  the  injury 
itself  has  not  been  substantial.  The  question  involved  in  such  cases  is  really 
one  of  compensation  purely.  If  no  substantial  loss  can  be  proved,  the  plaintiff 
must  be  restricted  to  nominal  damages."  Sedg.  Dam.  149;  Freese  v.  Crary, 
'19  Ind.  524;  Carl  v.  Granger  Coal  Co.,  69  Iowa,  519,  29  N.  W.  437;  Thorp  v, 
Bradley,  75  Iowa,  50,  39  N.  W.  177;  Bruce  v.  Pettengill,  12  N.  H.  341;  Hunt 
V.  D'Orval,  Dud.  (S.  C.)  ISO;    Tully  v.  Fitchburg  R.  Co.,  134  Mass.  500. 

9  Mellor  V.  Spateman,  1  Saund.  346b;  •  Brant  v.  Gallup,  111  111.  487;  Cook  v. 
Hull,  3  Pick.  269;  Bolivar  Manuf'g  Co.  v.  Neponset  Manuf'g  Co.,  16  Pick. 
241;  Stowell  v.  Lincoln,  11  Gray,  434;  Pollard  v.  Porter,  3  Gray,  312;  Pond 
V.  Merrifiold,  12  Cush.  181;  Shattuck  v.  Adams,  136  Mass.  34;  Newcomb  v. 
Wallace,  112  Mass.  25;  Marzetti  v.  Williams,  1  Barn.  &  Add.  412;  Warre  v. 
Calvert,  7  Adol.  &  E.  143;  Embrey  v.  Owen,  6  Exch.  352;  Northam  v.  Hurley, 
1  El.  &  Bl.  663;  McConnel  v.  Kibbe,  33  111.  175;  Burnap  v.  Wight,  14  111. 
301;  Dent  v.  Davison,  52  111.  109;  Graver  v.  Sholl,  42  Pa.  St.  58:  Delaware 
&  H.  Canal  Co.  v.  Torrey,  33  Pa.  St.  143;  Chamberlain  v.  Parker,  45  N.  Y.  ^^; 
Dixon  V.  Clow,  24  Wend.  188;  Quin  v.  Moore,  15  N.  Y.  432;  Mclntyre  v.  New 
York  Cent.  R.  Co.,  43  Barb.  532;  Ihl  v.  Forty-Second  St.  &  G.  St.  F.  R.  Co., 
47  N.  Y.  317;  Chapman  v.  Thames  Manuf'g  Co.,  13  Conn.  268;  Eaton  v.  Ly- 
man, 30  Wis.  41;  Adams  v.  Robinson,  65  Ala.  586;  Empire  Gold  Min.  Co.  v. 
Bonanza  Gold  Min.  Co.,  67  Cal.  406.  7  Pac.  810;  Hancock  v.  Hubbell,  71  Cal. 
537,  12  Pac.  618;  Kenny  v.  Collier,  70  Ga.  743.  8  S.  E.  58;  Mize  v.  Glenn,  3S 
Mo.  App.  98;  Jones  v.  Hannovan,  55  Mo.  462.  'The  action  may  be  main- 
tained to  vindicate  the  rights."  Per  Justice  Story,  in  Webb  v.  Portland 
Manuf'g  Co.,  3  Sumn.  189,  Fed.  Cas.  No.  17,322.     It  is  sometimes  said  that 

10  Hibbard  v.  W.  U.  Tel.  Co.,  33  Wis.  558;  Jewett  v.  Whitney,  43  Me.  242; 
Jones  V.  Hannovan,  55  Mo.  462;  Murphy  v.  City  of  Fond  du  Lac,  23  Wis. 
365;  Stowell  v.  Lincoln,  11  Gray,  434;  Gile  v.  Stevens,  13  Gray,  146;  Francis 
V.  Schoellkopf,  53  N.  Y.  152. 


§§    15-17)  DEFINITION    AND    GENERAL    NATURE.  27 

De  Minimis  non  Curat  Lex. 

The  oft-quoted,  but  little-understood,  maxim,  "De  minimis  non 
curat  lex,"  does  not  prohibit  the  allowance  of  nominal  damages.^  ^ 

the  violation  of  a  right  with  a  possibility  of  damage  is  sufficient  to  maintain 
an  action.  Ross  v.  Thompson,  78  Ind.  90;  Allaire  v.  Whitney,  1  Hill,  484. 
See  Whitney  v.  Allaire,  4  Denio,  5&4.  But  this  is  meaningless.  If  the  right 
violated  is  an  absolute  one,  damage  need  not  be  proved.  If  it  is  the  funda- 
mental right  not  to  be  harmed,  damage  must  be  proved  in  order  to  show  a 
violation  of  the  right.  In  Allaire  v.  Whitney,  1  Hill,  484,  it  was  held  to  be 
actionable  per  se  to  draw  one  into  a  contract  by  fraud.  The  court  said:  "In- 
deed, in  all  such  cases  it  would  not  be  difficult  to  show  the  degree  of  actual 
damage.  The  time  of  the  injured  party  has  been  consumed  in  doing  a  vain 
thing,  or  one  comparatively  vain;  and  time  is  money.  Fraud  is  odious  to 
the  law;  and  fraud  in  a  contract  can  hardly  be  conceived  of  without  being 
attended  with  damage  in  fact."  Refusal  by  banker  to  pay  check.  Marzetti 
V.  Williams,  1  Barn.  &  Adol.  415;  Winterbottom  v.  Wright,  10  Mees.  &  W. 
107.  See,  also,  Rolin  v.  Steward,  14  C.  B.  595,  where  actual  damages  were 
given.  The  omission  of  an  administrator  to  settle  his  accounts  with  the  pro- 
bate court  renders  him  liable  for  nominal  damages  at  all  events.  Webb  v. 
Gross,  79  Me.  224,  9  Atl.  612;  Fay  v.  Haven,  3  Mete.  (Mass.)  109;  McKim  v. 
Bartlett,  129  Mass.  226;  Probate  Court  v.  Slason,  23  Vt  300.  Contra,  01m- 
stead  V.  Brush,  27  Conn.  530.  A  riparian  owner  may  recover  nominal  dam- 
ages for  a  bare  infringement  of  his  rights.  New  York  Rubber  Co.  v.  Rothery, 
132  N.  Y.  293,  30  N.  E.  841;  Ulbricht  v.  Eufaula  Water  Co.,  86  Ala.  5S7,  6 
South.  78;  Lund  v.  City  of  New  Bedford,  121  Mass.  286;  Tillotson  v.  Smith. 
32  N.  H.  90;  Shannon  v.  Burr,  1  Hilt.  39:  Champion  v.  Vincent,  20  Tex.  Sll. 
But  see  Cory  v.  Silcox,  6  Ind.  39;  McElroy  v.  Goble,  6  Ohio  St.  187;  Wood 
V.  Waud,  3  Exch.  748.  Nominal  damages  may  be  recovered  for  the  unlawful 
flowage  of  lands.  Chapman  v.  Copeland,  55  Miss.  476;  Gerrish  v.  New  Market 
Manuf'g  Co.,  30  N.  H.  478;  Amoskoag  Manuf'g  Co.  v.  Goodale,  46  N.  H.  53; 
or  for  false  imprisonment,  Deyo  v.  Van  Valkenburgh,  5  Hill,  242.  In  England 
it  is  held  that,  in  an  action  against  a  public  officer  for  neglect  of  duty,  the 


11  Fullam  V.  Stearns,  30  Vt.  443.  "This  maxim  is  never  applied  to  the 
positive  and  wrongful  (i.  e.  forbidden)  invasion  of  another's  property.  To  war- 
rant an  action  in  such  a  case,  says  a  learned  writer,  'some  temporal  damage, 
be  it  more  or  less,  must  actually  have  resulted,  or  must  be  likely  to  ensue. 
The  degree  Is  wholly  immaterial;  nor  does  the  law  upon  every  occasion  re- 
quire distinct  proof  that  an  inconvenience  has  been  sustained.  For  example. 
if  the  hand  of  A.  touch  the  person  of  B.,  who  shall  declare  that  pain  has  not 
♦•nsnod?  The  only  mode  to  render  B.  secure  is  to  infer  that  an  inconv(Miionce 
l!,ns  actually  resulted.'  "  Seneca  Road  Co.  v.  Auburn  &  R.  R.  Co.,  5  IIllI,  170, 
1 75. 


28  NOMINAL    DAMAGES.  (Ch.    2 

Keeping  clearly  iu  mind  the  fundamoulal  idea  that  all  legal  rights 
are  rights  to  immunity  from  harm,  the  proper  application  of  the 
maxim  is  easily  understood.  The  law  is  a  practical  science,  adapted 
to  the  needs  and  conditions  of  every-day  life.  It  does  not  attempt 
to  insure  men  against  all  harm.  Trilling  vexations  and  losses  in 
cidcnr  to  existence  in  a  social  state  must  be  borne.  The  law  will 
not  countenance  litigation  over  what  is  insignificant,  for  mere  pur- 
poses of  vexation.  But  nominal  damages  are  given  only  in  cases 
where  the  defendant  has  been  guilty  of  forbidden  conduct,  or,  in 
other  words,  when  an  absolute  right  has  been  violated.  What  the 
law  has  considered  important  enough  to  forbid  cannot  be  regarded 
as  a  trifle.  To  require  proof  of  substantial  damages  would  in 
many  cases  nullify  the  prohibition,  and  destroy  the  right,  by  taking 
away  the  remedy  for  its  violation.  The  maxim  has  no  application 
to  this  class  of  cases,  and  it  is  only  in  this  class  of  cases  that  nomi- 
nal damages  are  ever  awarded.  Where,  however,  damages  are  not 
presumed,  but  must  be  proved, — that  is,  where  the  right  directly 
involved  is  the  fundamental  right  of  immunity  from  harm,  and  not 
a  specialized  or  absolute  right  correlative  to  a  prohibition, — proof  of 
merely  nominal  damages  will  not  support  an  action.  Here  alone 
is  the  maxim,  "De  minimis  non  curat  lex"  properly  applied  to  take 
aAvay  a  right  of  action.  The  law  no  longer  distinguishes  between  no 
appreciable  damage  and  no  damage  at  all.^^ 

plaintiff  must  show  damage.  The  right  which  every  man  has  to  the  servicea 
of  such  officer  is  relative  to  the  benefit  to  be  derived  therefrom.  The  right 
and  benefit  are  co-extensive;  and,  if  the  benefit  is  negatived,  the  right  ceases. 
Wood,  Mayne,  Dam.  11;  Pig.  Torts,  p.  129;  Wylie  v.  Birch,  4  Q.  B.  5GG;  Wil- 
liams V.  Mostyn,  4  Mees.  &  W.  145;  Stimson  v.  Farnham,  L.  R.  7  Q.  B.  175; 
Hobson  V.  Thellusson,  L.  R.  2  Q.  B.  642.  In  America  it  is  generally  held  that 
the  officer  is  liable  without  proof  of  damage.  "The  plaintiff  is  entitled  to 
nominal  damages  for  the  officer's  neglect.  *  *  *  No  actual  damages  are 
proved,  but,  where  there  is  neglect  of  duty,  the  law  presumes  damage."  Laf- 
lin  V.  Willard,  16  Pick.  64.  See,  also,  Goodnow  v.  Willard,  5  Mete.  (Mass.) 
517;  Lawrence  v.  Rice,  12  Mete.  (Mass.)  535;  Mickles  v.  Hart,  1  Denio,  548; 
Patterson  v.  Westervelt,  17  Wend.  543;  Palmer  v.  Gallup,  16  Conn.  555; 
Crawford  v.  Andrews,  6  Ga.  244. 

12  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  G42;    Smith  v.  Thack- 
«rah,  L.  R.  1  C.  P.  5G4. 


§S    15-17)  DEFINITION    AND    GENERAL    NATCRE.  29' 

Nominal  Dnmngcs  Establish  Rights. 

The  principal  purpose  of  allowing  nominal  damages  is  the  estab- 
lishment of  rights.  As  has  been  seen,  a  denial  of  nominal  dam- 
ages in  all  cases  when  no  actual  damages  can  be  proved  would  often 
be  a  denial  of  those  specialized  or  absolute  rights  which  grow  out 
of  forbidden  conduct.  A  fortiori,  an  action  must  lie  "whenever  the 
act  done  is  of  such  a  nature  as  that,  by  its  repetition  or  continu- 
ance, it  may  become  the  foundation  or  evidence  of  an  adverse 
right."  ^^  A  judgment  for  the  smallest  conceivable  sum  is  as  effect- 
ive for  declaring  the  existence  or  nonexistence  of  a  right  as  any  sum, 
however  large.^*  Illustrations  of  actions  brought  to  establish 
rights  in  which  nominal  damages  were  awarded  might  be  multiplied 
indefinitely.^^  A  few  will  suffice.  In  the  Tunbridge  Wells  Dip- 
per's Case  ^^  the  defendant  had  dipped  bathers  without  having  been 
chosen  for  the  post  by  the  homage  according  to  statute.  It  was 
not  proved  that  she  had  received  any  gratuity,  but  the  plaintiffs 
were  held  entitled  to  nominal  damages,  in  order  to  prevent  the  pos- 
sibility of  damage.  In  Patrick  v.  Green  way  '"  the  defendant  fished 
in  the  plaintiff's  several  fisheries,  but  caught  nothing.  Plaintiff 
was  nevertheless  held  entitled  to  a  verdict  because  of  the  infringe- 
ment of  the  right,  which  could  thereafter  be  used  as  evidence  of 

13  Webb  V.  Portland  Manuf'g  Co.,  3  Sumn.  189,  Fed.  Cas.  No.  17,322.  "Gen- 
erally, when  one  encroaclies  upon  the  inheritance  of  another,  the  law  gives 
a  right  of  action;  and,  even  if  no  actual  damages  are  found,  the  action  will 
be  sustained,  and  nominal  damages  recovered,  because,  unless  that  could  be 
done,  the  encroachments  acquiesced  in  might  ripen  into  legal  right,  and  the 
trespasser,  by  a  continuance  of  his  encroachments,  acquire  a  perfect  title." 
Hathorne  v.  Stinson,  12  Me.  183.  See,  also,  Seidensparger  v.  Spear,  17  Me. 
123;    Chapman  v.  Thames  Manuf'g  Co.,  13  Conn.  2G9. 

1*  Patrick  v.  Greenaway,  1  Saund.  34Gb,  note;  Devendorf  v.  Wert,  42  Barb. 
227;  Bassett  v.  Salisbury  Manuf'g  Co.,  8  Fost.  (N.  H.)  438;  Thomas  v.  Brack- 
uey,  17  Barb.  G54;  Carhart  v.  Auburn  Gas  Light  Co.,  22  Barb.  297;  Honsee  v. 
Hammond,  39  Barl).  89;  O'Kiley  v.  McChesuey,  3  Lans.  278;  Delaware  & 
II.  Canal  Co.  v.  Torrey,  33  Pa.  St.  143. 

1'  "To  state  when  rights  are  infringed,  and  consequently  when  nominal  dam 
:ij:cs  nre  recoverable,  would  be  to  rofapitulate  the  whole  corpus  juris."  Scdg. 
l>:iiii.  i;',7. 

!'••  2  Wils.  414. 

»^  Cited  in  note  to  Mellor  v.  Si)a(('iiiau,  1  .ShiiikI.  :;ii;i). 


30  NOMINAL    DAMAGES.  (.Cll.    2 

the  exercise  of  the  right  by  defendant.  In  Bower  v.  Hill  ^  ^  the 
plaintiff's  right  of  way  on  a  stream  was  obstructed,  but  the  dam- 
age was  problematical  on  account  of  the  state  of  the  stream.  Plain- 
tiff was  held  entitled  to  nominal  damages,  because  acquiescence 
in  the  obstruction  would  be  evidence  of  a  renunciation  of  the  right 
of  way.  In  Blofeld  v.  Payne  ^^  the  defendant  imitated  the  plaintiff's 
hones,  and  the  envelopes  in  which  they  were  sold,  thereby  infringing 
his  right.  Plaintiff  was  allowed  to  recover,  although  no  loss  of 
custom  was  shown.  In  all  these  cases  the  conduct  of  defendant 
was  expressly  forbidden.  A  denial  of  nominal  damages  would  have 
been  a  denial  of  the  right  for  the  purpose  of  creating  which  the  con- 
duct was  forbidden. 

New  Trials  and  Costs. 

The  importance  of  the  right  to  recover  nominal  damages  often 
consists  in  its  effect  on  costs.^°  Where  plaintiff  is  entitled  to  nomi- 
nal damages,  but  judgment  is  given  for  defendant,  it  will  be  re- 
versed, if  nominal  damages  will  entitle  plaintiff  to  costs;  ^^  other- 
wise not,^^  for  the  error  is  harmless.^^  But  error  in  denying  nomi- 
nal damages  is  not  always  harmless,  even  if  they  do  not  entitle  to 

18  1  Bing.  N.  C.  549.  i»  4  Barn.  &  Adol.  410. 

20  In  admiralty,  wliei*e  the  costs  are  in  tlie  discretion  of  tlie  court,  nominal 
damages  are  not  always  given  for  a  technical  wrong.  Barnett  v.  Luther,  1 
Curt.  434,  Fed.  Cas.  No.  1,025. 

21  Potter  V.  Mellen,  3G  Minn.  122,  30  N.  W.  438;  Enos  v.  Cole,  53  Wis.  Zio, 
10  N.  W.  377;  Sayles  v.  Bemis,  57  Wis.  315,  15  N.  W.  432;  Eaton  v.  Lyman,. 
30  Wis.  41;  French  v.  Ramge,  2  Neb.  254;  Chambers  v.  Frazier,  29  Ohio  St. 
3G2;  Seat  v.  Moreland,  7  Humph,  575;  Middleton  v.  Jerdee,  73  Wis.  39,  40  N. 
W.   629. 

2  2  New  Orleans,  M.  &  T.  R.  Co.  v.  Southern  &  A.  Tel.  Co.,  53  Ala.  211;  Mc- 
Allister V.  Clement,  75  Cal.  182,  16  Pac.  775;  Ely  v.  Parsons,  55  Conn.  83,  101, 
10  Atl.  499;  Mcintosh  v.  Lee,  57  Iowa,  356,  10  N.  W.  895;  Thorp  v.  Bradley, 
75  Iowa,  50,  39  N.  W.  177;  Faulkner  v.  Closter,  79  Iowa,  15,  44  N.  W.  208; 
Haven  v.  Beidler  Manuf'g  Co.,  40  Mich.  2S6;  Harris  v.  Kerr,  37  Minn.  537, 
35  N.  W.  379;    French  v.  Ramge,  2  Neb.  254;    Middleton  v.  Jerdee,  73  Wis.  39. 

40  N.  W.  629;    Benson  v.  President,  etc.,  of  Village  of  Waukesha,  74  Wis.  31. 

41  N.  W.  1017;  Hecht  v.  Harrison  (Wyo.)  40  "^ac.  306;  Crawford  v.  Bergen 
(Iowa)  60  N.  W.  205.  Where  nominal  damages  are  found  on  insufficient  evi- 
dence, a  new  trial  will  not  be  granted.  Maher  v.  Winona  &  St.  P.  R.  Co.,  31 
Minn.  401,  18  N.  W.  105. 

2  3  Singer  Manuf'g  Co.  v.  Potts  (Minn.)  61  N.  W.  23 


§§    1-3-17)  DEFINITION    ANI>    GENERAL    NATURE.  31 

costs.  Regard  must  be  had  to  the  real  purpose  and  object  of  the 
suit.  If  it  was  instituted  to  try  some  question  of  permanent  right, 
and  the  party  is  found  entitled  to  that  right,  but  it  happens  that 
only  nominal  damages  can  be  given,  there  is  no  objection  to  giving 
a  new  trial,  for  the  error  is  not  harmless;  but  if  the  party  has 
failed  in  the  substantial  object  of  the  suit,  and  has  left  only  a  bare 
technical  right  to  recover  nominal  damages,  a  new  trial  will  not 
be  awarded  him  for  that  purpose.^*  Thus,  it  was  held,  in  an  action 
of  trespass  against  a  selectman  for  cutting  trees  alleged  to  obstruct 
a  highway,  where  the  main  object  of  the  action  was  to  determine 
whether  or  not  there  had  been  a  dedication  of  such  highway,  and 
the  question  of  dedication  was  found  in  favor  of  the  defendant, 
that  error  of  the  trial  court  in  refusing  the  plaintiff  nominal  dam- 
ages for  the  trees  improperly  cut  was  not  ground  for  a  new  trial. 
The  court  said:  "The  complaint  in  this  suit  was  manifestly  brought 
to  determine  whether  the  plaintiff  had  a  right  to  the  land  which 
was  in  use  for  a  highwa3\  If  error  had  intervened  tending  to 
defeat  him  in  the  establishment  of  this  right,  the  finding  that  his 
damages  were  merely  nominal  would  have  constituted  no  objec- 
tion to  a  new  trial.  But  the  plaintiff  entirely  failed  in  the  real 
object  of  the  suit,  but,  by  reason  of  the  accidental  cutting  of  some 
brush  and  trees  not  necessary  to  make  the  highway  passable,  he 
has  a  bare  technical  right  to  nominal  damages.  But  substantial 
justice  has  been  done.  That  a  new  trial  must  be  denied  under 
these  circumstances  is  abundantly  sustained  by  the  uniform  tenor 
of  the  decisions  in  this  state  and  elsewhere."^* 

2*  Knowles  v.  Steele  (Minn.)  Gl  N.  W.  5o7. 

2  5  Ely  V.  Parsons,  55  Conn.  83,  101,  10  Atl.  499.  See,  also,  Merrill  v.  Dibble, 
12  111.  App.  85;  Shipman  v.  Horton,  17  Conn.  487;  Gold  v.  Ives,  29  Conn.  123; 
Cooke  v.  Barr,  39  Conn.  30G;  Bviggs  v.  Morse,  42  Conn.  200;  Hyatt  v.  Wood, 
3  Johns.  239;  Hudspeth  v.  Allen,  2G  Ind.  105;  IMumleigh  v.  Dawson,  1  Gil- 
man,  544.  On  general  subject  of  nominal  damages,  see,  also,  Asliby  v.  White, 
2  Ld.  Raym.  938;  Kidder  v.  Barker,  18  Vt.  454;  Clifton  v.  Hooper,  0  Q.  B. 
4G8;  Baker  v.  Green,  2  Bing.  317;  Williams  v.  Mostyn,  4  Mees.  &  W.  145; 
Young  v.  Spencer,  10  Barn.  &  C.  145;  Erabrey  v.  Owen,  G  E.\oh.  353.  372; 
Williams  v.  Esling,  4  Pa.  St.  48G;  Seneca  Road  Co.  v.  Auburn  &  R.  R.  Co.,  5 
Hill,  175;    Bustamente  v.  Stewart.  55  C.-iJ.  115. 


32  COMI'EINSATOKV    UAMAUliS.  (Ch.    3 

CHAPTER  in. 

COMPEMSATOKY  DAMAGES. 

IS.  Definition. 

ll)-li().  Proximate  and  Remote  Consequences  in  GeneraL 

21.  Direct  and  Consequential  Losses. 
22-2;3.  Direct  Losses. 

24-25.  Consequential  Losses. 

26.  Proximate  and  Remote  Consequential  Losses. 

27.  Consequential  Damages  for  Torts. 

28.  Consequential  Damages  for  Breach  of  Contract. 

29.  Avoidable  Consequences. 

30.  The  Required  Certainty  of  Damages. 

31.  Profits  or  Gains  Prevented. 

32.  Entirety  of  Demand. 

33.  Time  to  Which  Compensation  may  be  Recovered— Past  and  Future 

Losses. 

34^35.  Elements  of  Compensation. 

3G.  Pecuniary  Losses. 

37-38.  Physical  Pain  and  Inconvenience. 

30-40.  Mental  Suffering. 

41.  Aggravation  and  Mitigation  of  Damages. 

42.  Reduction  of  Loss. 

43.  Injuries  to  Limited  Interests. 

DEFINITION. 

18.  Compensatory  damages  are  damages  sufBcient  in 
amount,  in  contemplation  of  law,  to  indemnify  the 
person  injured  for  the  loss  suffered. 

Compensatory  damages  are  either  nominal  or  substantial.  Nom- 
inal damages  are  legal  compensation  for  a  technical  wrong,  where 
no  substantial  damages  are  proved.  Where  damages  are  thus  pre- 
sumed, they  may  not  strictly  be  called  "compensatory,"  for  they  may 
be  awarded  though  the  injury  results  in  a  benefit.  But  they  may 
be  strictly  coincident  with  the  harm  suffered.^  Accordingly,  they 
sometimes   are,   and    sometimes    are   not,    strictly    compensatory.^ 

1  Ante,  p.  2G.  2  jag.  Torts,  3G7. 


§    18)  DKFINITION.  33 

Nominal  damages  were  considered  in  the  last  chapter.     We  will 
now  consider  the  principles  governing  substantial  compensation. 

It  has  been  seen  that  the  cardinal  principle  governing  the  award 
of  damages  both  in  cases  of  torts  and  breaches  of  contract  is  that 
plaintiff  should  receive  a  just  compensation  for  the  loss  suffered. 
"The  general  rule  is  that  whoever  does  an  injury  to  another  is  lia- 
ble in  damages  to  the  extent  of  that  injury."  ^  But  legal  compen- 
sation often  falls  far  short  of  actual  indemnity.*  The  law  does 
not  and  cannot  give  compensation  for  all  the  consequences  of  a 
wrongful  act,  nor  can  damages  be  recovered  for  mere  inconvenience, 
vexation,  or  disappointment^  The  law  prescribes  what  elements 
shall  be  considered  m  estimating  legal  compensation.  "Where  the 
loss  can  be  calculated  by  arithmetical  rule  and  pecuniary  stand- 
ards, the  amount  of  compensation  is  a  question  of  law.     Where 

3  Dexter  v.  Spear,  4  Mason,  115,  Fed.  Cas.  No.  3,S(J7.  "It  is  a  rational  and 
a  legal  principle  that  the  compensation  should  be  equivalent  to  the  injury." 
Bussy  V.  Donaldson,  4  Dall.  206.  "It  is  a  general  and  very  sound  rule  of 
law  that  when  an  injury  has  been  sustained,  for  which  the  law  gives  a  rem- 
edy, that  remedy  shall  be  commensurate  to  the  injury  sustained."  Kockwood 
v.  Allen,  7  Mass.  254.  "By  the  general  system  of  our  law,  for  every  invasion 
of  right  there  is  a  remedy,  and  that  remedy  is  compensation.  This  compen- 
sation is  furnished  in  the  damages  which  are  awarded."     Scdg.  Dam.  28. 

■*  "It  has  been  contended  that  the  true  measure  of  damages,  in  all  actions 
of  covenant,  is  the  loss  actually  sustained.  But  this  rule  is  laid  doAvn  too 
generally.  In  an  action  of  covenant  for  nonpayment  of  money  on  a  bond  or 
mortgage,  no  more  than  the  principal  and  legal  interest  of  the  debt  can  be  re- 
covered, although  the  plaintiff  may  have  suffered  to  a  much  greater  amount 
l>y  the  default  of  payment."  Tilghman,  C.  J.,  in  Bender  v.  Frombcrger.  4 
Dall.  43G,  444.  "Every  defendant  against  whom  an  action  is  brought  expe- 
riences some  injury  or  inconvenience  beyond  what  the  costs  will  compensate 
him  for."  Brom,  Leg.  Max.  199.  "But,  although  the  law  does  not  attempt 
the  impossibility  of  replacing  the  plaintiff  in  exactly  the  position  he  was  in 
before  the  injury,  yet,  within  the  bounds  of  possibility,  its  aim  is  compensa- 
tion."    Sedg.  Dam,  50. 

6  Hamlin  v.  Groat  Northern  Ry.  Co.,  1  Hurl.  &  N.  40S;  Hunt  v.  D'Orval, 
Dud.  (S.  C.)  180.  See  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135,  17  Atl. 
1052.  "The  injury  mu.st  be  physical,  as  distinguished  from  one  purely  imag- 
inative; it  must  be  something  that  produces  real  discomfort  or  aniioyanoo, 
through  tlie  medium  of  the  senses,  not  from  delicacy  of  taste  or  a  refined 
fancy."  Bird,  V.  C,  In  Westcott  v.  Middleton,  43  N.  J.  Eq.  478,  4Sn,  11  Atl. 
490;  Id..  41  N.  .1.  Eq.  297,  18  Atl.  80.  Damages  may  be  recovered  for  incon- 
i.AW  DAM. — y 


34  COMnCNSATORY    DAMAGES.  (Ch.    3 

the  loss  cannot  be  so  estimated,  as  in  cases  of  personal  torts,  the 
law  merelv  prescribes  what  elements  of  injury  shall  be  consid- 
ered, and  leaves  the  amount  of  compensation  to  the  discretion  of 
a  jury. 

PROXIMATE  AND  REMOTE  CONSEQUENCES  IN  GENERAL. 

19.  For  purposes  of  liability,  the  consequences  of  -wrong- 

ful conduct  may  be  divided  into 

(a)  Proximate  consequences  (p.  39),  and 

(b)  Remote  consequences  (p.  39). 

20.  Compensation   may  be  recovered   only  for  proximate 

losses  resulting  from  wrongful  conduct,  and  never 
for  any  losses  wliich  are  remote. 

Where  compensation  is  claimed  for  losses  alleged  to  have  been 
caused  by  the  wrongful  conduct  of  another,  the  first  question  is 
whether  the  conduct  complained  of  was  really  the  cause  of  the 
harm  in  a  sense  upon  which  the  law  can  act.  The  harm  may  be 
traceable  to  the  conduct,  but  the  connection  may  be,  in  the  accus- 
tomed phrase,  too  remote.  'T^n  jure  non  remota  causa  sed  proxima 
spectatur."  As  has  been  seen,  liability  must  be  founded  on  con- 
duct which  is  the  proximate  cause  of  the  harm.  Again,  there  may 
have  been  an  undoubted  wrong,  but  it  may  be  doubtful  how  much 
of  the  harm  is  related  to  the  wrongful  conduct  as  its  proximate 
consequence,  and  therefore  is  to  be  counted  in  estimating  the 
wrongdoer's  liability.  The  distinction  of  proximate  from  remote 
consequences  is  necessary — First,  to  ascertain  whether  there  is  any 
liability  at  all;  and,  second,  if  a  wrong  is  established  for  which 
the  defendant  is  liable,  to  fix  the  limit  of  liability  or  measure  of 
damages.*  "Much  the  same  considerations  are  involved  whether 
the  attempt  is  to  show  that  the  injury  itself  is  remote  from  the  act 

venience  amounting  to  physical  discomfort.  Chicago  &  A.  R.  Co.  v.  Flagg,  43 
111.  364;  Southern  Kan.  E,y.  Co.  v.  Rice,  3S  Kan.  398,  16  Pac.  817;  Emery  v. 
City  of  Lowell,  109  Mass.  197;  Ross  v.  Leggett,  61  Mich.  445,  28  N.  W.  695; 
Luse  V.  Jones,  39  N.  J.  Law.  707;  Ives  v.  Humphreys,  1  E.  D.  Smith,  196; 
Scott  Tp.  V.  Montgomery,  95  Pa.  St.  444. 
8  PoL  Torts,  27. 


§    21)  DIRECT    AND    CONSEQUENTIAL    LOSSES.  35 

or  only  certain  consequences  of  the  injury.  These  classes  of  cases 
are  often  difiQcult  to  distinguish  in  practice;  and  both  are  to  some 
•extent  InTolved  in  the  consideration  of  nominal  damages,  where 
they  shade  into  one  another.  Besides  this,  a  case  turning  on  the 
right  of  action  may  frequently  be  a  precedent  for  the  decision  of 
n  case  involving  the  measure  of  damages." '' 

It  has  been  said  that  the  term  "proximate  cause"  is  not  capable 
of  perfect  or  general  definition,^  and  the  confusion  and  uncertainty 
in  the  authorities  justify  the  remark.  The  maxim,  "Non  remota 
causa  sed  proxima  causa  spectatur,"  merely  points  out  that  some 
consequences  are  held  too  remote  to  be  counted.  The  test  of  re- 
moteness is  still  to  be  found.* 


DIRECT  AND  CONSEQUENTIAL  LOSSES. 

21.  For  the  purpose  of  deterraming  -what  consequences 
are  proximate  and  -whaX  remote,  the  losses  caused 
by  a  wrong  may  be  divided  into 

(a)  Direct  (p.  06),  and 

(b)  Consequential  losses  (p.  39). 

-  Sedg.  Dam.  163. 

«  PoL  Torts,  28. 

»  "The  question  as  to  what  is  the  direct  or  proximate  cause  of  an  injury  is 
ordinarily  not  one  of  science  or  legal  knowledge,  but  of  fact,  for  a  jury  to  de- 
termine in  view  of  the  accompanying  circumstances."  Schumaker  v.  St.  Paul 
&  D.  R.  Co.,  46  Minn.  o9,  48  N,  W.  559.  The  test  of  the  most  conspicuous  an- 
tecedent, suggested  by  John  Stuart  Mill,  has  been  recognized.  "The  cause 
of  an  event  is  the  sum  total  of  the  contingencies  of  every  description,  which, 
being  realized,  the  event  invariably  follows.  It  is  rarely,  if  ever,  that  the 
invariable  sequence  of  events  subsists  between  one  antecedent  and  one  conse- 
quent Ordinarily,  that  condition  is  usually  termed  the  cause  whose  share  in 
the  matter  is  most  conspicuous,  and  is  the  most  immediately  preceding  and 
proximate  in  the  event."  Appleton,  C.  J.,  in  Moulton  v.  Inhabitants  of  San- 
ford,  51  Me.  127,  134.  See,  also.  Dole  v.  Insurance  Co.,  2  Cliff.  4;il,  Fed.  Cas. 
No.  3,9G6;  Baltimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  117;  Northwest  Transp. 
Co.  V.  Boston  Marine  Ins.  Ck)..  41  Fed.  802;  Sutton  v.  Town  of  Wauwatosji, 
29  Wis.  21.  But  see  Jeffersonville,  M.  &  I,  R.  Co.  v.  Riley,  39  lud.  568; 
Gates  V.  Railroad  Co.,  39  Iowa,  45. 


86  COMPENSATORY    DAMAGES.  (Cll.    3- 


SAME— DIRECT  LOSSES. 

22.  Direct  losses  are   such  losses  as  proceed  immediately 

from,   wrongful   conduct,  -without   the   intervention 
of  any  intermediate  cause. ^" 

23.  Direct  losses  are  necessarily  proximate,  and  compen- 

sation therefor  is  al"ways  recoverable. 

Direct  Losses. 

A  tort  feasor  is  liable  for  all  injuries  resulting  directly  from 
his  wrongful  act,  whether  they  could  or  could  not  have  been  fore- 
seen by  him.^^  The  justice  and  propriety  of  this  rule  are  mani- 
fest. If  one  man  strike  another  with  a  weapon  or  with  his  hand, 
he  is  clearly  liable  for  all  the  direct  injury  the  party  struck  sus- 
tains therefrom.  The  fact  that  the  result  of  the  blow  is  unex- 
pected and  unusual  can  make  no  difference.  If  the  wrongdoer 
should  in  fact  intend  but  slight  injury,  and  deal  a  blow  which  in 
99  cases  out  of  100  would  result  in  a  trifling  injury,  and  yet,  by 
accident,  produced  a  very  grave  one  to  the  person  receiving  it,  ow- 
ing either  to  the  state  of  health  or  other  accidental  circumstances 
of  the  party,  such  fact  would  not  relieve  the  wrongdoer  from  the 
consequences  of  his  act.  The  real  question  in  these  cases  is,  did 
the  wrongful  conduct  produce  the  injury  complained  of?  and  not 
whether  the  party  committing  the  act  could  have  anticipated  the 
result.  The  fact  that  the  conduct  is  unlawful  renders  him  liable 
for  all  its  direct  evil  consequences.^^  Direct  consequences  are 
necessarily  proximate.     One  is  conclusively  presumed  to  intend 

10  Schumaker  v.  St.  Paul  &  D.  R.  Co.,  4G  Minn.  39,  48  N.  W.  5.59. 

11  Cogdell  V.  Yett,  1  Cold.  230;  Tally  v.  Ay  res,  3  Sneed,  G77;  Bo  was  v.  Pi- 
oneer Tow  Line,  2  Sawy.  21,  Fed.  Cas.  No.  1,713;  Perley  v.  Eastern  R.  Co., 
98  Mass.  414;  Lane  v.  Atlantic  Works,  111  Mass.  136;  Blake  v.  Lord,  16 
Gray,  387;  Sloan  v.  Edwards,  61  Md.  89;  Eten  v.  Luyster,  60  N.  Y.  252; 
Lathers  v.  Wyman,  76  Wis.  616.  45  N.  W.  669;  Newsum  v.  Newsum,  1  Leigh, 
86;  Keenan  v.  Cavanaugh,  44  Vt.  268;  Little  v.  Boston  &  M.  R.  R.,  66  Me. 
239;  Brown  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  54  Wis.  342,  11  N.  W.  3.56; 
Lowenstein  v.  Chappell,  30  Barb.  241;  Horner  v.  Wood,  16  Barb.  389;  Schu- 
maker V.  St.  Paul  &  D.  R.  Co.,  46  Minn.  39,  48  N.  W.  559. 

12  Brown  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  54  Wis.  342,  11  N.  W.  356. 


^§    2 2- J 3)  DIRECT   LOSSES.  37 

the  direct  consequences  of  one's  acts.  Thus,  it  was  held  in  a  civil 
action  for  assault,  where  defendant  had  intentionally  kicked  plain- 
tiff on  the  leg  during  school  hours,  though  he  did  not  intend  to  in- 
jure him,  that,  the  act  being  unlawful,  defendant  was  liable  for 
the  injury  which  in  fact  resulted,  though  it  could  not  have  been 
foreseen.^^  So,  also,  a  sleeping-car  company  is  liable  for  a  mis- 
carriage caused  by  the  wrongful  expulsion  of  a  married  woman 
from  a  berth,  though  its  servants  were  ignorant  of  her  delicate 
condition.^*  And  generally,  where  the  previous  physical  condition 
is  such  as  to  increase  the  loss  caused  by  a  personal  injury,  the 
wrongdoer,  though  unaware  of  such  condition,  is,  nevertheless,  lia- 
ble for  the  whole  loss  caused,  as  such  loss  is  the  direct,  though  un- 
expected, consequence  of  the  wrong/'' 

13  Vosburg  V.  Putney,  SO  Wis.  523,  50  N.  W.  403. 

1*  Mann  Boudoir-Car  Co.  v.  Dupre,  4  C.  C.  A.  540,  54  Fed.  QiG.  Contra, 
Pullman  Palace-Car  Co.  v.  Barker,  4  Colo.  344,— a  case  much  criticised,  and 
opposed  to  all  the  other  authorities.  See,  also,  Campbell  v.  Pullman  Palace- 
Car  Co.,  42  Fed.  4S4,-  Barbee  v.  Reese,  60  Miss.  906;  Oliver  v.  Town  of  La 
Valle,  30  Wis.  594;  Brown  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  54  Wis.  342,  11  N. 
W.  356.  911. 

isTerre  Haute  &  I.  R.  Co.  v.  Buck,  9G  lud.  346;  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Jones,  108  Ind.  551,  9  N.  E.  476;  Ohio  &  M.  R.  Co.  v.  Hecht,  115  Ind. 
443,  17  N.  E.  297;  Lapleine  v.  Steamship  Co.,  40  La.  Ann.  661,  4  South.  875; 
Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  61  Md.  74,  7  Atl.  805;  Baltimore  & 
L.  T.  Co.  V.  Cassell,  66  Md.  419,  7  Atl.  805;  Elliott  v.  Van  Buren,  33  Mich. 
49;  .Jewell  v.  Grand  Trunk  Ry.,  55  N.  H.  84;  Stewart  v.  City  of  Ripon,  38 
Wis.  584;  McNamara  v.  Village  of  Clintonville,  62  Wis.  207,  22  N.  W.  472; 
Coleman  v.  New  York  &  N.  H.  R.  Co.,  106  Mass.  160;  Allison  v.  Chicago  & 
N.  W.  R.  Co.,  42  Iowa,  274;  Driess  v.  Friederick,  73  Tex.  460,  11  S.  W.  493; 
East  Tennessee,  V.  &  G.  R.  Co.  v.  Lockhart,  79  Ala.  315;  Tice  v.  Munn,  94 
N.  Y.  621;  Owens  v.  Ivansas  City,  St.  .7.  &  C.  B.  R.  Co.  (Mo.  Sup.)  8  S.  W. 
o50;  Louisville  &  N.  R.  Co.  v.  Northingtnn  (Tenn.)  17  S.  W.  880;  .Jackson  v. 
Railroad  Co.,  25  Am.  &  Eng.  R.  Cas.  327;  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
Wood,  113  Ind.  544.  14  N.  E.  572;  Indianapolis,  P.  &  C.  R.  Co.  v.  Pltzer  (Tnd. 
f^up.)  6  N.  E.  310:  Ix»uisville,  N.  A.  &  C.  Ry.  Co.  v.  .Jones  (Ind.  Sup.)  9  N.  E. 
476;  Indinnnpolis,  P.  &  C.  R.  Co.  v.  Pitzer  (Ind.  Sup.)  10  N.  E.  70;  Wabash. 
St.  L.  &  P.  Ry.  Co.  V.  Locke  (Ind.  Sup.)  14  N.  E.  391;  Brown  v.  Railway  Co. 
<Wis.)  11  N.  W.  3.''>6;  Beauchanip  v.  Saginaw  Mining  Co.  (Midi.)  15  N.  W. 
65;  McNamara  v.  Village  of  Clintonville  (Wis.)  22  N.  W.  472;  Cincinnati.  1., 
f5t.  L.  &  C.  R.  Co.  V.  Cooper  (Ind.  Sup.)  22  N.  E.  340;  White  Sowing-Mach.  Co. 
V.  Rifhtor  find.  App.)  2S  .\.  E.  416;  I.ouisvillo.  N.  A.  ^:  C.  Ry.  Cn.  y.  Fnlvoy. 
104  Ind.  W.),  3  N.  E.  :;89,  and   I  N.   E.  9<)S,  followed  in  Uliio  .^-   M.  K.  Co.  v- 


38  COMPENSATORY    DAMAGES.  (Ch.   S 

In  actions  of  contract  the  rule  is  the  same.^^  Whether  the  par- 
ties to  the  contract  had  in  mind  the  damages  Avhich  might  result 
from  a  breach  does  not  in  the  least  affect  their  liability  for  a  loss 
resulting  directly  from  a  breach.^^  The  direct  consequence  of  a 
breach  of  contract  is  a  loss  of  the  thing  contracted  for,  and  is 
therefore  almost  necessarily  contemplated  by  the  parties.  Still, 
in  some  cases,  the  extent  of  the  damage  is  unexpected,  but  com- 
pensation is  recoverable,  nevertheless,  if  the  loss  is  direct.  Thus, 
in  an  action  for  breach  of  a  contract  of  carriage,  the  carrier  is 
liable  for  the  value  of  a  package  lost,  though  ignorant  of  the  fact 
that  it  contained  jewels.^^ 

Hecht,  supra;  Vaudeubui-gh  v.  Truax,  4  Denio,  464.  See,  also,  cases  collected 
in  Clark  v.  Chambers,  3  Q.  B.  Div.  327,  47  Law  J.  Q.  B.  427;  Crane  Elevator 
C5o.  V.  Lippert,  11  C.  C.  A.  521,  63  Fed.  942.  "Where  a  disease  caused  by  the 
injury  supervenes,  as  well  as  where  the  disease  exists  at  the  time,  and  Ls  ag- 
gravated by  it,  the  plaintiff  is  entitled  to  full  compensatory  damages."  The 
negligence  causing  the  accident  is  the  proximate  cause  of  the  injury.  Louis- 
vUle,  N.  A.  &  C.  Ry.  Co.  v.  Snyder,  117  Ind.  435,  20  N.  E.  2S4. 

16  Hadley  v.  Baxendale,  9  Exch.  341;  Burrell  v.  New  York  &  S.  S.  Salt 
Co.,  14  Mich.  34;  Brown  v.  Foster,  51  Pa.  St.  165;  CoUard  v.  Southeastern 
R.  Co.,  7  Hurl.  &  N.  79;  Williams  v.  Vanderbilt,  28  N.  Y.  217;  Smith  v.  St. 
Paul,  M.  &  M.  Ry.  Co.,  30  Minn.  169,  14  N.  W.  797;  Rhodes  v.  Baird,  16  Ohio 
St.  581;  Brayton  v.  Chase,  3  Wis.  456;  Bridges  v.  Stickney,  38  Me.  361; 
Paducah  Lumber  Co.  v.  Paducah  Water-Supply  Co.,  89  Ky.  340,  12  S.  W.  554; 
Wilson  V.  Dunville,  6.  L.  R.  Ir.  210;  Hamilton  v.  Magill,  12  L.  R.  Ir.  186.  202; 
Booth  V.  Spuyten  Duyvil  Rolling-Mill  Co.,  60  N.  Y.  487;  Gallup  v.  Miller, 
25  Hun,  298;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Sumner,  106  Ind.  55,  5  N.  E. 
404;  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Power,  119  Ind.  269.  21  N.  E.  751; 
Houser  v.  Pearce,  L3  Kan.  104.  See  Prosser  v.  Jones,  41  Iowa,  674;  McHose 
v.  Fulmer,  73  Pa.  St.  365;    Wilkinson  v.  Davies,  146  N.  Y.  25,  40  N.  E.  501. 

IT  Sedg.  Dam.  159,  161;  Collins  v.  Stephens,  58  Ala.  543;  Daughtery  v. 
American  Union  Tel  Co.,  75  Ala.  168;  Cohn  v.  Norton,  57  Conn.  480,  492,  18 
Atl.  595. 

18  Kenrig  v.  Eggleston  (1648)  Aleyn,  93;  Little  v.  Boston  &  M.  R.  R.,  66  Me. 
239.  See,  also,  Mather  v.  American  Exp.  Co.,  138  Mass.  55;  Prance  v. 
Gaudet,  L.  R.  6  Q.  B.  199;  Wilson  v.  Railway  Co.,  9  C.  B.  (N.  S.)  632;  Star- 
bird  y.  Barrows.  62  N.  Y.  615. 


§§    24-26)  CONSEQUENTIAL    LOSSES,  39 

SAME— CONSEQUENTIAL  LOSSES. 

24.  Consequential  losses  are  the  indirect  losses  caused  by 
a  ■wrrong,  but  to  "which  some  intermediate  cause  has 
contributed. 

26.  Consequential  losses  may  be  either 

(a)  Proximate  (p.  39),  or 

(b)  Remote  (p.  39). 

26.  PROXIMATE  AND  REMOTE  CONSEQUENTIAL 
LOSSES — Consequential  losses  are  proximate  "wrhen 
the  natural  and  probable  effect  of  the  Mrrongful  con- 
duct under  the  circumstances  is  to  set  in  operation 
the  intervening  cause  from  which  the  loss  directly 
results.  When  such  is  not  the  natural  and  probable 
effect  of  the  wrongful  conduct,  the  losses  are  remote. 

Consequ^eiitial  Losses  in  General. 

"A  loss  which  is  the  immediate  result  of  a  wrong  is  called  a 
'direct  loss';  one  that  is  an  indirect  result  of  the  wrong  is  called 
a  'consequential  loss.'  "  ^®      For  example,  where  a  fence  is  destroyed, 

18  Sedg.  Dam.  §  111.  According  to  the  supreme  court  of  New  Hampshire, 
the  term  "consequential  damage"  "means  both  damage  which  is  so  remote 
as  not  to  be  actionable,  and  damage  which  is  actionable.  Sometimes  it  is 
used  to  denote  damage  which,  though  actionable,  does  not  follow  immediately, 
in  point  of  time,  upon  the  doing  of  the  act  complained  of.  *  *  *  It  is  thu.s 
used  to  signify  damage  which  is  recoverable  at  common  law,  in  an  action  of 
case,  as  contradistinguished  from  an  action  of  trespass.  On  the  other  hand, 
it  is  used  to  denote  a  damage  which  is  so  remote  a  consequence  of  the  act 
that  the  law  affords  no  remedy  to  recover  it.  The  terms  'remote  damages' 
and  'consequential  damages'  are  not  necessarily  synonymous,  or  to  be  indif- 
ferently used."  Eaton  v.  Railroad,  51  N.  H.  504,  511).  And  again:  "A  damage 
caused  by  a  breach  of  a  contract  is  often  called  consequential  (in  the  tech- 
nical sense  of  being  a  consequence  so  remote  or  unexpected  as  not  to  entitle 
the  suEfcrer  to  redress)  where  it  cannot  reasonably  be  suppo.sed  to  have  been 
contemplated  by  the  parties,  in  making  the  contract,  as  likely  to  be  caused 
by  the  breach;  and  in  tort  a  damage  is  often  called  consequential  when  it 
was  not  a  reasonably  necessary  consequence,  or  one  so  natural  and  probable 
that  the  defendant  can  be  reasonably  suppo.sed  to  have  foreseen  the  likelihood 
of  its  having  been  '^ansed  by  the  wrong  complained  of."  Thompsdu  v.  Im- 
provement Co..  51  N.  U.  515. 


40  COMPENSATOHV    DAMAGES.  (Ch.   3 

loss  of  the  fence  is  the  direct  result.  Loss  of  the  crops  by  reason 
of  trespassing-  cattle  entering  at  the  gap  is  indirect  or  consequen- 
tial. Pain  and  bruises  are  the  direct  result  of  an  assault  and 
battery.  The  doctor's  bill,  loss  of  time,  and  the  like,  are  conse- 
quential. Consequential  losses  differ  from  direct  losses  in  this: 
that  some  intermediate  cause  has  contributed  to  the  injury. 
Whether  or  not  compensation  can  be  recovered  for  such  losses 
will  depend  on  the  nature  of  the  intervening  cause.  The  damages 
recoverable  for  either  a  tort  or  a  breach  of  contract  must  result 
without  the  intervention  of  any  independent  cause.  In  many  of 
the  cases  the  presence  or  absence  of  an  "independent  self-operat- 
ing cause"  is  proposed  as  a  test  of  what  is  proximate  and  what 
remote.  But  an  intervening  cause  is  not  regarded  as  independent 
when  the  natural  and  probable  effect  of  the  conduct  complained 
of  is  to  set  it  in  operation.  Proximate  consequences,  therefore,  are 
simply  those  that  are  natural  and  probable.*  "Natural"  and 
"probable"  means  what,  according  to  common  experience  and  the 
usual  course  of  events,  should  be  expected  to  happen.  Every  one 
is  conclusively  presumed  to  know  and  contemplate  the  natural  and 
probable  result  of  their  acts.-"  The  rule  of  natural  and  probable 
consequences  is  a  vague  one;  but,  as  Sir  Frederick  Pollock  has 
said,^^  if  English  law  seems  vague  on  these  questions,  it  is  be- 
cause it  is  grappled  more  closely  with  the  inherent  vagueness  of 
facts  than  any  other  system.  In  whatever  form  the  rule  is  stated, 
it  must  be  remembered  that  it  is  not  a  logical  definition,  but  only 

*  Whether  or  not  a  given  result  is  natural  and  probable  is  for  the  jury. 
Uaverly  v.  State  Line  &  S.  R.  Co.,  135  Pa.  St.  50.  19  Atl.  1013.  "Ordinarily, 
in  cases  of  contract,  the  question  is  not  one  of  liability  for  proximate  cause, 
but  of  consequential  damajres.  The  breach  of  contract  establishes  liability, 
and  the  question  of  the  allowance  of  any  item  of  damage  is  practically  one 
of  the  interpretations  of  the  contract,  and  consequently  for  the  court."  Sedg. 
El.  Dam.  64,  citing  Hobbs  v.  Railroad  Co.,  L.  R.  10  Q.  B.  Ill,  122;  Hammond 
V.  Bussey,  20  Q.  B.  Div.  79,  89.  In  an  action  of  contract,  Blackburn,  J.,  said: 
"I  do  not  thuik  that  the  question  of  remoteness  ought  ever  to  be  left  to  a 
jury.  That  would  be,  in  effect,  to  say  that  there  sliall  be  no  such  rule  as  to 
damages  being  too  remote."  Hobbs  v.  London  &  S.  W.  II.  Co.,  L.  R.  10  Q. 
B    111. 

20  Suth.  Dam.  32. 

21  Pol.  Torts,  33. 


§§    24-26)  CONSEQUENTIAL    LOSSES.  41 

-a  guide  to  the  exercise  of  conuuon  sense.  "The  lawj^er  cannot 
afford  to  adventure  himself  with  philosophers  in  the  logical  and 
metaphysical  controversies  that  beset  the  idea  of  cause."  The 
practical  application  of  any  rule  is  a  matter  of  great  difficulty. 
Different  courts,  though  equally  acknowledging  the  same  princi- 
ples, have  sometimes  reached  diverse  conclusions  on  similar  states 
■of  facts.  TVTien  the  best  possible  rule  is  stated,  each  case  must 
still  be  decided  upon  its  own  special  state  of  facts,  and  often  upon 
the  nicest  discriminations.  "While  in  mau}^  cases  the  rule  of 
damages  is  plain  and  easy  of  application,  there  are  many  others 
in  which,  from  the  nature  of  the  subject-matter  and  the  peculiar 
circumstances,  it  is  very  difficult,  and  in  some  cases  impossible,  to 
lay  down  any  definite,  fixed  rule  of  law  by  which  the  damages 
actually  sustained  can  be  estimated  with  a  reasonable  degree  of 
accuracy,  or  even  a  probable  approximation  to  justice;  and  the 
injur\'  must  be  left  wholly  or  in  great  part  unredressed,  or  the 
question  must  be  left  to  the  good  sense  of  the  jury  upon  all  the 
facts  and  circumstances  of  the  case,  aided  by  such  advice  and 
instructions  from  the  court  as  the  peculiar  facts  and  circumstances 
of  the  case  may  seem  to  require.  But  the  strong  inclination  of 
the  courts  to  administer  legal  redress  upon  fixed  and  certain  rules 
has  sometimes  led  to  the  adoption  of  such  rules  in  cases  to  which 
they  could  not  be  consistently  or  justly  applied.  Hence  there  is, 
perhaps,  no  branch  of  the  law  upon  which  there  is  a  greater  con- 
flict of  judicial  decisions,  and  none  in  which  so  many  merely  arbi- 
trary rules  have  been  adopted.  We  are  compelled  to  say  that 
the  line  of  mere  authority  upon  questions  of  damages  like  that 
here  presented,  if  any  such  line  can  be  traced  through  the  conflict 
of  hostile  decisions,  is  too  confused  and  tortuous  to  guide  us  to  a 
safe  or  satisfactory  result,  without  resort  to  the  principles  of  nat- 
ural justice  and  sound  policy  which  underlie  these  questions,  and 
which  have  sometimes  been  overlooked  or  obscured  by  artificinl 
■distinctions  and  arbitrary  rules."  -- 

The  difficulty  in  stating  and  applying  any  practical  rule  has 
been  much  increased  by  the  failure  of  courts  to  always  use  terms 
with  precision   and   consislency.      The  distinction   between    proxi- 

^iAllisuu  V.  Ciiaudler,  11  Mich.  r»ll.',  .Mecli.  Ca.s.  Dam.  i)'.). 


42  COMPENSATORY  damagf:s.  CCh.  3- 

mate  and  remote  consequences  is  often  confoundrd  with  consider- 
ations of  certainty  and  uncertainty  of  loss.  Compensation  for  re- 
mote losses  is  refused,  not  because  the  loss  is  not  in  one  sense 
caused  by  the  wrong,  but  for  reasons  of  public  policy,  and  because 
the  chain  of  causation  cannot  be  followed  with  sufficient  certain- 
ty. No  cause  can  operate  without  being  influenced  by  other  causes. 
So,  also,  no  cause  is  without  an  effect,  which,  in  turn,  becomes 
the  cause  of  a  further  effect,  and  so  on  to  infinity.  Liability  for 
consequences  must  end  somewhere,  and  the  law  has  fixed  this  limit 
at  the  natural  and  probable  consequences.  Compensation  is  re- 
coverable for  consequential  losses  only  when  they  are  proximate. 
Consequential  losses  are  proximate  only  when  they  are  natural 
and  probable.  Consequences  are  natural  and  probable  only  when^ 
according  to  common  experience  and  the  usual  course  of  events, 
the  effect  of  the  wrongful  conduct  was  to  set  in  operation  the  in- 
termediate cause;  that  is  to  say,  when  the  intermediate  cause  was 
not  independent.  It  is  just  here  that  the  difficulty  lies.  No  effect 
is  the  product  of  a  single  isolated  cause,  but  rather  of  innumera- 
ble co-existing  causes.  In  one  sense,  every  cause  is  the  sum  of 
all  the  antecedents,  for  no  particular  event  could  have  happened 
if  any  one  of  innumerable  necessary  conditions  had  been  absent. 
Mr.  Wharton  ^^  states  the  case  of  a  haystack  fired  by  a  spark  from 
a  passing  engine.  If  the  railroad  had  not  been  built,  an  event 
depending  on  an  almost  infinite  number  of  conditions  (among  them, 
the  discovery  of  coal  and  iron),  or  if  the  haystack  had  not  been 
erected,  an  event  also  dependent  on  innumerable  conditions,  no^ 
fire  would  have  occurred.  Each  one  of  such  conditions  may  there- 
fore be  regarded  as  a  cause  of  the  injury,  for  without  it  the  fire 
could  not  have  happened.  In  this  view,  every  antecedent  event  is 
a  cause  of  every  subsequent  one.  It  is  obvious  that  the  law  can- 
not concern  itself  with  such  metaphysical  refinements.  When  an 
efficient  adequate  cause  of  an  injury  is  found,  it  must  be  taken  as 
the  true  cause,  unless  some  other  independent  cause  is  shown  to 
have  intervened  between  it  and  the  injury.^*  The  inquiry  is  al- 
ways whether  there  was  any  intermediate  cause  disconnected  from 

23  Whart,  Neg.  §  85. 

24  Georgetown,  B.  &  L.  Ry.  Co.  v.  Eagles,  9  Colo.  Mo.  13  Pac.  696.     Sea. 
also,  Blytbe  v.  Denver  &  R.  G.  Ry.  Co.,  15  Colo.  333,  25  Pac.  702. 


§§    24-26)  CONSEQUENTIAL    LOSSES.  4S 

the  primary  fault,  and  self -operating,  which  produced  the  injury.^*' 
If  there  was,  then  such  intermediate  cause  must  be  regarded  a& 
the  proximate  cause,  and  all  antecedent  causes  as  remote.  The 
nature  of  the  intervening  cause  is  the  all-important  and  decisive 
question.  If  it  is  independent  of  defendant's  fault,  and  such  that 
without  it  the  injury  would  not  have  happened,  the  loss  is  remote, 
though  defendant's  act  contributed  to  it.-^     In  all  cases,  it  is,  of 

2  5  Milwaukee  &  St.  V.  Ry.  Co.  v.  Kellogg,  94  U.  S.  469.  If  the  injury  re- 
ceived by  the  plaintiff  through  the  negligence  of  the  defendant  superinduced 
and  contributed  to  the  production  or  development  of  a  cancer,  the  defendant 
is  responsible  therefor,  and  the  cancer  is  not  to  be  treated  as  an  independent 
cause  of  injury  or  suffering.  The  wrongdoer  cannot  be  allowed  to  apportion 
the  measure  of  his  responsibility  to  the  initial  cause.  Baltimore  City  Pass. 
Ry.  Co.  v.  Kemp,  61  Md.  619. 

2  6  Where  plaintiff  was  induced  by  false  representations  to  put  money  in  a 
speculation,  and  afterwards  put  in  more  money,  the  loss  of  the  latter  money 
was  held  a  proximate  consequence  of  the  fraud.  Crater  v.  Binninger,  33  N. 
J.  Law,  513.  Injury  to  plaintiff's  mill  and  machinery,  caused  by  a  boiler  ex- 
plosion, is  a  proximate  consequence  of  defects  in  the  boiler.  Page  v.  Ford.  12 
Ind.  46;  Erie  City  Iron  Works  v.  Barber,  106  Pa.  St.  125.  Where  defendant  ab- 
ducted plaintiff's  slaves,  leaving  no  one  to  care  for  the  plantation,  it  was  held 
that  compensation  could  be  recovered  for  corn  destroyed  by  cattle  of  the  neigh- 
bors, and  for  wood  swept  away  by  a  flood.  McAfee  v.  Crofford,  13  How.  447. 
A  loss  through  deprivation  of  means  of  protection  is  proximate.  Derry  v. 
Flitner,  118  Mass.  131;  The  George  and  Richard,  L.  R.  3  Adm.  &  Ecc.  466; 
Wilson  V.  Newport  Dock  Co.,  L.  R.  1  Exch.  177.  Borradaile  v.  Brunton,  8  Taunt. 
535;  2  Moore,  582.  But  see  Hadley  v.  Baxendale,  9  Exch.  341,  347.  A  de- 
fect in  a  fence  is  a  proximate  cause  of  a  trespass  by  cattle  and  injury  to  crops. 
Scott  V.  Kenton,  81  111.  96.  It  is  natural  and  probable  that  a  trespassing  horse 
will  kick  other  horses  on  the  premises.  Lee  v.  Riley,  34  Law  J.  C.  P.  212; 
Lyons  v.  Merrick,  105  Mass.  71.  Where  plaintiff's  horses  escaped  through  the 
defect,  and  were  killed  by  the  falling  of  a  haystack  on  defendant's  premises, 
the  loss  was  held  not  too  remote.  Powell  v.  Salisbury.  2  Younge  &  J.  391. 
Where  cattle  escaped,  and  ate  branches  of  a  yew  tree,  and  were  thereby  poi- 
soned, the  loss  is  the  proximate  result  of  the  defect.  Lawrence  v.  Jenkins, 
L.  R.  8  Q.  B.  274.  Where  defendant's  wrong  obliges  plaintiffs  to  raise  money. 
a  loss  through  a  forced  sale  of  property  is  too  remote  to  be  compensated. 
See  Deyo  v.  Waggoner,  19  Johns.  241;  Donnell  v.  Jones,  13  Ala.  490;  Cochrane 
V.  Quackenbush,  29  Minn.  376.  13  X.  W.  154;  Larios  v.  Gurety,  L.  R.  5  P.  G. 
.346;  Travis  v.  Duffau,  20  Tex.  49;  Siuitli  v.  O'Donnell.  8  Lea,  468.  Selling 
animals  with  an  infectious  disease  is  the  proximate  cause  of  its  conmiunicatjon 
to  ofJu'r  animals  of  the  purchaser.  Whcoler  v.  Kandall,  48  111.  182;  Shorrnd  v. 
LangdoM,  21   Iowa,  ."jlS;   Joy  v.  Biizi-r,  77  Iowa,  7.".,    11   .\.  W.  ~>~'i:    Hroqud  v. 


■44  COMI'ENSATORY    DAMACiES.  (Ch.    3 

course,  prerequisite  to  any  liability  that  defendant's  act  had  an 
influence  in  causing  the  injury.^^  There  must  be  an  immediate 
and  natural  relation  between  the  act  complained  of  and  the   iii- 

Tiipp,  2G  Kan.  700,  14  Pac.  227;  Fans  v.  Lewis,  2  B.  Mon.  375;  Bradley  v. 
Ilea,  14  Allen,  20;  Long  v.  Clapp,  15  Neb.  417,  19  N.  W.  4G7;  Jeffrey  v.  Blge- 
low,  13  Wend.  51S;  Wintz  v.  Morrison,  17  Tex.  372;  Routh  v.  Caron,  G4  Tex. 
2S9;  Packard  v.  Slack,  32  Vt.  9;  Smith  v.  Green,  1  C.  P.  Div.  92.  Loss  of  busi- 
ness caused  by  the  deprivation  of  machinery  or  of  business  premises  is  usually 
considered  proximate.  Waters  v.  Towers,  S  Exch.  401;  New  York  &  C.  Min- 
ing Syndicate  &  Co.  v.  Fraser,  130  U.  S.  611,  9  Sup.  Ct.  665;  Jolly  v.  Single. 
16  Wis.  2S0;  Savannah,  F.  &  W.  Ry.  Co.  v.  Pritchard,  77  Ga.  412,  1  S.  E.  261; 
Van  Winkle  v.  Wilkins,  81  Ga.  93,  7  S.  E.  644;  Sitton  v.  MacDonald,  25  S.  C. 
6S;  New  Haven  Steam-Boat  Co.  v.  Mayor,  etc.,  36  Fed.  716;  Moore  v.  Davis. 
49  N.  H.  45;  Carlisle  v.  Callahan,  78  Ga.  320,  2  S.  E.  751;  Lange  v.  Wagner, 
52  Md.  310.  But  see  Vedder  v.  Hildreth,  2  Wis.  427,  and  Ruthven  Woolen 
Manuf'g  Co.  v.  Great  Western  R.  Co.,  18  U.  C.  C.  P.  316.  Loss  of  goods  by 
sudden  flood  is  not  a  proximate  consequence  of  a  negligent  delay  by  a  carrier. 
Denny  v.  New  York  Cent  R.  Co.,  13  Gray.  481;  Morrison  v.  Davis,  20  Pa.  St. 
171;  Railroad  Co.  v.  Reeves,  10  Wall.  176.  See  post,  note  68.  Where  a  defect 
in  the  street  causes  a  traveler  to  be  thrown  out  of  his  carriage,  and  exposed  to 
the  cold  and  rain,  the  city  is  liable  for  a  seriou  disease  thereby  contracted. 
Ehrgott  V.  Mayor,  etc.,  96  N.  Y.  264.  In  an  action  on  a  fire  insurance  policy, 
the  judge,  in  his  charge  to  the  jury,  stated  the  theory  of  plaintiff  as  follows; 
"The  plaintiff  says  the  position  of  the  lightning  arresters  in  the  vicinity  of  the 
fire  was  such  that  by  reason  of  the  fire  in  the  tower  a  connection  was  made 
between  them,  called  a  'short  circuit';  that  the  short  circuit  resulted  in  keeping 
back,  or  in  bringing  into  the  dynamo  below,  an  increase  of  electric  current, 
that  made  it  more  diflicuit  for  this  armature  to  revolve  than  before,  and  caused 
a  higher  power  to  be  exerted  upon  it,  or  at  least  caused  greater  resistance  to 
the  machinery;  that  this  resistance  was  transmitted  to  the  pulley  by  which  this 
armature  was  run,  through  the  belt;  that  that  shock  destroyed  that  pulley; 
that  by  the  destruction  of  that  pulley  the  main  shaft  was  disturbed,  and  the 
succeeding  pulleys,  up  to  the  jack  pulley,  were  ruptured;  that  by  reason  of 
pieces  flying  from  the  jack  pulley,  or  from  some  other  cause,  the  fly  wheel  of 
the  engine  was  destroyed,  the  governor  broken,  and  everything  crushed, — in  a 
word,  that  the  short  circuit  in  the  tower  by  reason  of  the  fire  caused  an  ex- 
tra strain  upon  the  belt,  through  the  action  of  electricity,  and  that  caused  the 
damage."  It  was  held  that  the  loss  was  a  natural  and  proximate  consequence 
of  the  fire,  and  recoverable.  Lynn  Gas  &  Electric  Co.  v.  Merideu  Fire  Ins. 
Co.,  158  Mass.  570.  33  N.  E.  690. 

27  Royston  v.  Illinois  Cent.  R.  Co.,  67  Miss.  376,  7  South.  320;  Jackson  v. 
Hall,  84  N.  C.  489;  Wulstein  v.  Mohlman  (Super.  N.  Y.)  5  N.  Y.  Supp.  569; 
ElHs  V.  Cleveland,  55  Vt.  358;    Huxley  v.  Berg,  1  Starkie,  98;    Hampton  v. 


§§    24-26)  CONSEQUENTIAL    LOSSES.  45- 

jury,  without  the  intervention  of  other  independent  causes,  or  the 
damages  will  be  too  remote.-® 

JUustrations  of  Proximate  and  Remote  Consequences. 

Where  defendant  destroyed  the  lateral  support  of  a  house  by 
wrongfully  excavating  in  a  public  street,  he  is  liable  for  injuries 
to  an  adjoining  house  depending  on  the  other  for  support,^"  no 
independent  cause  having  intervened.  A  gas  company  contracted 
to  supply  plaintiff  with  a  service  pipe,  and  laid  a  defective  pipe, 
from  which  gas  escaped.  A  plumber  employed  by  plaintiff  took 
a  lighted  candle  to  discover  from  whence  the  gas  escaped,  and  an 
explosion  took  place.  The  negligence  of  the  gas  company  in  lay- 
ing a  defective  pipe  was  held  the  proximate  cause  of  the  explo- 
sion.^" Here  the  injury  could  not  have  happened  but  for  the  in- 
tervening negligence  of  the  plumber,  but  the  obvious  tendency  of 
the  original  fault  was  to  set  in  operation  just  such  a  force,  and 
therefore  the  loss  could  not  be  regarded  as  remote.  Where  a  vil- 
lage maintains  a  sidewalk  at  an  unsafe  height  without  guards  it 
is  liable  for  injuries  to  one  who  is  negligently  pushed  off  by  a 

Jones,  58  Iowa,  317,  12  N.  W.  2TG;  Swinfin  v.  Lowry,  37  Minn.  345,  34  N.  W. 
22;  Lewis  v.  Flint  &  P.  M.  Ry.,  54  Mich.  55,  19  N.  W.  744  (cause  and  occa- 
sion. Opinion  by  Cooley,  J.,  collecting  and  discussing  cases).  Where  a  10' 
year  old  boy,  while  attempting  to  climb  up  a  ladder  attached  to  a  box  car  of 
a  moving  train,  lost  his  footing,  and  was  thrown  under  the  train  and  killed, 
his  own  negligence  was  the  proximate  cause  of  his  death.  There  was  no 
causal  connection  between  the  negligence  of  the  company  in  running  its  train 
at  a  greater  speed  than  allowed  by  ordinance,  and  the  injui-y  suffered.  West- 
ern Ry.  of  Alabama  v.  Mutch,  97  Ala.  194,  11  South.  894.  Money  paid  by  a 
railroad  company  as  damages  and  expenses  of  a  suit  brought  against  it  for 
ejecting  a  passsenger  who  refused  to  pay  fare,  except  by  presenting  a  coupon 
issued  by  a  connecting  line  without  authority,  cannot  be  recovered  from  the 
latter;  for  the  only  remedy,  as  against  it,  was  to  refuse  to  recognize  the  cou- 
pon, and  the  subsequent  ejection,  particularly  if  accompanied  by  unnecessary 
force,  was  not  made  legally  necessary  by  its  act  In  selling  the  ticket,  but  was 
upon  the  sole  responsibility  of  the  company  causing  the  same.  Pennsylvania 
R.  Co.  V.  Wabash,  St.  L.  &  P.  R.  Co..  157  U.  S.  225,  15  Sup.  Ct.  57G. 

28  Rnrker  v.  Athens  Manuf'g  Co.,  54  Ga.  84. 

20  r.altimore  &  P.  R.  Co.  v.  Reaney,  42  Md.  118. 

80  Burrows  v.  March  Gas  &  Coke  Co.,  39  Law  .7.  Exch.  33  L.  R.  5  Exch.  (;7. 
See,  also,  I>annen  v.  Albany  Gaslight  Co.,  44  N.  Y.  4."9;  Ivouisvillo  Gas  Co.  v_ 
Gutenkuntz.  82  Ky.  432. 


•4G  COMP]':.\SAT()IiY    DAMAGES.  (Ch.   3 

third  person;'^  but,  wliere  a  town  negligently  leaves  an  excava- 
tion in  a  street,  it  is  not  liable  to  one  who  was  willfulh'  thrown  into 
it  by  another.^-  The  act  of  the  latter  was  not  a  natural  and 
])robable  effect  of  the  act  of  the  town.  There  was  no  causal  con- 
nection between  them.  In  Sharp  v.  Powell,^ ^  the  defendant,  con- 
trary to  a  police  regulation,  had  washed  his  wagon  in  the  public 
street,  allowing  the  water  to  run  down  the  gutter,  to  a  sewer 
which,  under  ordinary  circumstances,  would  have  carried  it  off. 
But  the  grating  over  the  sewer  was  obstructed,  and  the  water 
spread  over  the  pavement,  and  froze,  forming  a  sheet  of  ice.  Plain- 
tiff's horse,  being  led  by,  slipped  on  the  ice,  and  broke  its  leg. 
Defendant  did  not  know  that  the  grating  was  obstructed.  It  was 
held  that  defendant  was  not  liable,  the  court  saying  that  the  loss 
was  too  remote,  because  not  one  which  defendant  could  fairly  be 
expected  to  anticipate  as  likely  to  ensue  from  his  act.  The  forma- 
tion of  the  sheet  of  ice  at  the  sewer  was  not  a  natural  and  prob- 
able result  of  defendant's  wrong.  The  obstruction  of  the  grating 
was  an  unusual  circumstance. 

The  shooting  of  plaintiff's  decedent  while  making  an  attack  on 
a  neighbor's  house  when  drunk  is  not  a  natural  and  probable  con- 
sequence of  the  liquor  dealer's  unlawful  conduct  in  selling  to  him 
while  intoxicated,^*  for  independent  causes  intervened.  Where  an 
injury  to  a  traveler  on  a  highway  is  caused  partly  by  a  defective 
road  and  partly  by  ice  with  which  it  is  covered,  the  defect  in  the 
road  is  the  proximate  cause  of  the  injury.^"'  The  duty  of  the  city 
is  not  affected  by  the  fact  that  the  ice  is  in  part  the  result  of  arti- 
ficial causes,  as  of  water  escaping  from  a  hose,  and  not  wholly  of 
natural  causes,  such  as  the  fall  of  rain.^' 

31  ViUage  of  CartervUle  v.  Cook,  129  111.  152,  22  N.  E.  14. 

3  2  Alexander  v.  Town  of  New  Castle,  115  Ind.  51,  17  N.  E.  200. 

8  3  L.  R.  7  C.  P.  253,  41  Law  J.  C.  P.  95.  Cf.  Chamberlain  v.  City  of  Osh- 
kosh,  84  Wis.  289,  54  N.  W.  618. 

3  4  Schmidt  v.  Mitchell,  84  111.  195.  And  see  Bradford  v.  Boley  (Pa.  Sup.)  ;il 
Atl.  751. 

3  5  City  of  Atchison  v.  King,  9  Kan.  550;  City  of  Lincoln  v.  Smith,  28  Neb. 
762,  45  N.  W.  41. 

3  6  Henkes  v.  City  of  Minneapolis,  42  Minn.  530,  44  N.  W.  1026.  As  to  high- 
way accidents  generally,  see  Oliver  v.  Town  of  La  Vaile,  36  Wis.  592;  Jackson 


■§§    24-26)  CONSEQUENTIAL    LOSSES.  47 

Where  plaintiff  could  have  avoided  the  injurious  consequences 
of  defendant's  wrong,  his  negligence  in  failing  to  do  so  is  regarded 
as  the  proximate  cause  of  the  damage,  and  the  original  fault  is 
remote.^ ^  A  carrier  set  plaintiff  down  a  mile  from  her  destina- 
tion. The  day  was  cold,  and  there  was  a  line  of  street  cars  which 
plaintiff  might  have  used,  but  she  walked  home,  and,  in  so  doing, 
caught  cold,  and  suffered  permanent  injuries.  The  injury  was 
held  too  remote,  plaintiffs  negligence  in  failing  to  take  the  street 
car  having  intervened  and  caused  the  injury.^* 

Where  a  human  agency  or  the  voluntary  act  of  a  person  over 
whom  defendant  has  no  control  intervenes  after  defendant's  wrong- 
ful act,  the  consequences  are  usually  remote.^®  But,  where  the 
act  of  the  third  party  is  a  natural  and  probable  result  of  defend- 
ant's acts,  the  loss  is  not  too  remote.*"  Loss  of  credit  or  custom 
involves  the  intervention  of  the  will  of  strangers,  and  is  therefore 
usually  too  remote.*^      But,  where  the  wrongful  conduct  directly 

V.  Town  of  Bellevieu,  30  Wis.  250;  Kelley  v.  Town  of  Foud  du  Lac.  31 
Wis.  179;  Moulton  v.  Inhabitants  of  Sanford,  51  Me.  127;  Cobb  v.  Inhabitants 
of  Standish,  14  Me.  198;  Marble  v.  City  of  Worcester,  4  Gray,  395;  Palmer  v. 
Inhabitants  of  Andover,  2  Gush.  600;  Davis  v.  Inhabitants  of  Dudley.  4  Allen, 
557;  Smith  v.  Smith,  2  Pick.  621;  Horton  v.  City  of  Taunton,  97  Mass.  206. 
note;  Hyatt  v.  Trustees  of  Village  of  Rondout,  44  Barb.  3S5;  Sykes  v.  Pawlet, 
43  Vt.  440;  Bovee  v.  Danville,  53  Vt.  183. 
3  7  See  post,  "Avoidable  Consequences." 

38  Francis  v.  St.  Louis  Transfer  Co.,  5  Mo.  App.  7.  See,  also,  Hobbs  v.  Rail- 
road Co.,  L.  R.  10  Q.  B.  Ill;  Indianapolis,  B.  &  W.  R.  Co.  v.  Birney,  71  111. 
.391.     But  see  Drake  v.  Kiely,  93  Pa.  St.  492. 

39  Burton  v.  Pinkerton,  L.  R.  2  Exch.  340;  Stone  v.  Codman,  15  Pick.  297; 
Schmidt  v.  Mitchell,  84  111.  195;  Hampton  v.  Jones,  58  Iowa,  317,  12  N.  W.  276; 
Ellis  V.  Cleveland,  55  Vt.  358;  Mitchell  v.  Clarke,  71  Gal.  163,  11  Pac.  SS2; 
State  V.  Ward,  9  Heisk.  100,  133;  Vicars  v.  Wilcocks,  8  East,  1,  2  Smith,  Lead. 
Cas.  Eq.  .553,  and  exhaustive  note.  Loss  of  a  situation  is  not  a  proximate  con- 
sequence of  an  assault  and  battery.     Brown  v.  Cummings,  7  Allen,  507. 

<o  Griggs  V.  Fleckonstein,  14  Minn.  81  (Gil.  62);  Billmun  v.  Railroad  Co.,  76 
Ind.  166;  McDonald  v.  Snelling,  14  Allen,  292;  2  Grconl.  Ev.  §§  256,  286.  28<)a; 
3  Pars.  Cont  179,  180;  Pig.  Torts,  169. 

*i  Lowenstein  v.  Monroe,  ."j5  Iowa,  82,  7  N.  W.  406;  Weeks  v.  Prescott,  .>"J 
Vt.  57;  Burnap  v.  Wight,  14  111.  301.  See  Alexander  v.  .lacoby,  2:!  Ohio  St. 
358;  Dennis  v.  Stoughton,  55  Vt.  371;  Pollock  v.  (Jamil,  69  x\!a.  373.  CoiiLni, 
MacVeagh  v.  Bailey,  29  111.  App.  (;(x;. 


48  COMPENSATORY    DAMAGES.  (Ch.   S 

affects  the  credit  or  trade  of  plaintiff,  the  rule  is  otherwise.*^  A 
trespasser  is  liable  for  the  injury  caused  by  a  crowd  which  he  draws 
after  him,  if  his  act  was  of  a  nature  to  attract  a  destructive  crowd.*^ 

27.  CONSEQUENTIAL!    DAMAGES    FOR    TORTS— Com- 

pensation may  be  recovered  for  all  tlie  consequen- 
tial losses  resulting  from  a  tort  -which  were  natural 
and  probable  at  the  time   the  tort  was  committed 

(p.  49). 

28.  CONSEQUENTIAL     DAMAGES     FOR    BREACH    OF 

CONTRACT — Compensation  may  be  recovered  only 
for  such  consequential  losses  resulting  from  a  breach 
of  contract  as  Tvere  natural  and  probable  under  the 
circumstances  contemplated  by  the  parties  at  the 
time  the  contract  was  made  (p.  51). 

Compensation  can  be  recovered  for  consequential  losses  only  when 
they  are  the  natural  and  probable  result  of  the  wrongful  conduct. 
Natural  consequences  are  those  which  follow  an  act  in  the  usual 
order  of  events,  and  which,  therefore,  might  reasonably  have  been 
anticipated  under  the  circumstances.**  Whether  the  action  is  for 
a  tort  or  a  breach  of  contract,  the  loss  must  be  the  proximate  re- 
sult of  the  primary  fault,  or  compensation  cannot  be  recovered.** 
In  determining  whether  the  loss  suffered  is  a  proximate  conse- 
quence, the  test  in  both  classes  of  cases  is  the  same, — the  natural 
and  probable  tendency  of  the  wrongful  conduct  to  produce  the  loss 
in  question.  But,  in  determining  what  consequential  losses  shall 
be  compensated,  there  is  an  important  distinction  between  cases 
of  contract  and  cases  of  tort*^  Liability  for  consequences  is  much 
more  extended  in  the  case  of  torts  than  of  contracts.  Compen- 
sation may  be  recovered  for  all  the  injurious  consequences  of  a 
tort  which  result  according  to  the  usual  order  of  events  and  gen- 

42  Boyd  V.  Pitt,  14  Ir.  C.  L.  43;    Larios  v.  Gurety,  L.  R.  5  P.  C.  34G;    Tarle- 
ton  V.  M'Gawley,  Peake,  N.  P.  270. 
<3  Fairbanks  v.  Kerr,  70  Pa.  SL  S6;  Guille  v.  Swan,  19  Johns.  3S1. 
**  Ante,  p.  40. 
4  5  Ante,  pp.  4,  34. 
4  6  Sutb.  Dam.  §  45. 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  49 

eral  experience,  and  which,  therefore,  at  the  time  the  tort  was 
committed,  the  wrongdoer  may  reasonably  be  presumed  to  have 
anticipated.*"  But,  for  breach  of  contract,  compensation  may  be 
recovered  only  for  such  consequential  losses  as  are  natural  and 
probable  under  the  circumstances  contemplated  by  the  parties  at 
the  time  the  contract  was  made;  and  it  is  wholly  immaterial  w^htit 
consequences  are  natural  and  probable,  or  even  actually  contem- 
plated at  the  time  of  the  breach.*^  "For  proximate  and  natural 
consequences  of  the  defendant's  act,  whether  it  be  a  breach''  of  con- 
tract or  a  tort,  a  recovery  can  always  be  had.  The  only  meaning 
of  the  rule  with  regard  to  the  contemplation  of  parties  is  that  in 
contract  a  particular  species  of  proof  as  to  special  consequences 
is  often  available,  which  is  not  so  in  tort."  *® 

Consequential  Damages  for  Torts. 

Where,  at  the  time  a  tort  was  committed,  it  might  have  been 
reasonably  expected  to  set  in  operation  the  intermediate  cause  of 
an  injury,  or  where  it  exposes  plaintiff  to  the  risk  of  injury  from 
some  fairly  obvious  danger,  which  ultimately  results  in  injury,  the 
loss  is  a  natural  and  probable  one,  and  may  be  compensated.  The 
rule  that  compensation  for  consequential  injuries  caused  by  torts 
cannot  be  recovered  unless  they  are  such  as  could  have  been  rea- 
sonably anticipated  does  not  require  the  injury  to  have  been  ac- 
tually foreseen.^"      It  is  simply  another  way  of  stating  the  rule 

*7  Hoadley  v.  Transportation  Co.,  115  Mass.  304;  Flori  v.  City  of  St.  Louis, 
60  Mo.  341;  Forney  v.  Geldmacher,  1~>  Mo.  113;  Hughes  v.  McDonough,  43  N. 
J.  Law,  4G9;  Wiley  v.  Raih-oad  Co.,  44  N.  J.  Law,  247;  Warwick  v.  Hutchin- 
son, 4.5  N.  .1.  Law,  61;  Chalk  v.  Railroad  Co.,  85  N.  C.  423;  Daniels  v.  Bnllan- 
tine,  23  Ohio  St.  532;  Jackson  v.  Railroad  Co.,  13  Lea,  491;  Borchardt  v.  Boom 
Co.,  54  Wis.  107,  ,11  N.  W.  440. 

48  Suth.  Dam.  §  45;  Hadley  v.  Baxendale,  9  Exch.  341;  Candee  v.  Telegraph 
Co.,  34  Wis.  479;  Pacific  Exp.  Co.  v.  Darnell,  02  Tex.  039;  Thomas,  B.  &  W. 
Manuf'g  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co.,  02  Wis.  042,  22  N.  W.  827;  Smitli  v. 
Osbom,  143  Mass.  185,  9  N.  E.  558;  Frohreich  v.  Ganiiiion,  28  Minn.  47t;,  11  iN. 
W.  88;  W.  U.  Tel.  Co.  v.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577;  Weaver  v.  Penny, 
17  111.  App.  028;  Packard  v.  Slack,  32  Vt.  9;  Smith  v.  Green,  1  C.  P.  Div.  92; 
RIech  V.  Bolch,  08  Iowa.  520,  27  N.  W.  507;  McAlister  v.  Railroad  Co..  71  .Mn. 
351;   .lones  v.  Gilmore,  91  Pa.  St.  310.     So(>  post,  51  et  scii. 

*'■'  Sodg.  Dam.  §  871. 

tf>  Siith.  Dam.  §  28;    B(]\vas  v.  Tow  Line,  2  Sawy.  21.  \<\'i\.  Cas.  No.  l,7i;;. 

I>AW  DAM. — 4 


50  COMPKNSATOHY    DAMAGES.  (Ch.   3 

that  damages,  to  be  recoverable,  must  be  natural  and  probable; 
and  it  is  misleading.  "The  damages  are  not  limited  or  affected,  so 
far  as  they  are  compensatory,  by  what  was,  in  fact,  in  contemj)la- 
tion  by  the  party  in  fault."  °^  If  a  tort  feasor  expected  the  injury 
to  result  from  his  wrongful  act,  which  in  fact  did  result,  be  must 
be  presumed  to  have  intended  to  cause  that  particular  injury; 
and  the  loss  would  be  a  direct  rather  than  a  consequential  one,  and 
compensation  could  be  recovered  on  the  principle  already  ex- 
plained.^- That  which  a  man  actually  foresees  is  to  him,  at  all 
events,  natural  and  probable.^^  All  that  is  required  is  that  the 
injury  be  such  as  would  probably  result  from  such  a  tort  under 
the  circumstances.*^*  Every  person  may  reasonably  be  presumed 
to  know  what  the  consequences  of  their  acts  will  be  according  to 
common  experience  and  the  usual  course  of  nature,  and  required 
to  guard  against  them.^^      To  that  extent,  therefore,  a  wrongdoer 

51  Suth.  Dam.  §  16. 

62  Stevens  v.  Dudley,  56  Vt.  158,  106. 

53  Pol.  Torts.  28. 

54  Wliart.  Neg.  §§  77,  78;  Suth.  Dam.  §  16;  Hig:g:ins  v.  Dewey,  107  Mass. 
494;  White  v.  Ballou,  8  Allen,  408;  Luce  v.  Insurance  Co.,  105  Mass.  297; 
Stevens  v.  Dudley,  56  Vt.  158;  Brown  v.  Railroad  Co.,  54  Wis.  342,  11  N.  W. 
356,  911;  Terre  Haute  &  I.  R.  Co.  v.  Buck,  96  Ind.  346;  Winkler  v.  Railroad 
Co.,  21  Mo.  App.  99;  Evans  v.  Railroad  Co.,  11  Mo.  App.  463;  Baltimore  City 
P.  R.  Co.  V.  Kemp,  61  Md.  74;  Hoadley  v.  Transportation  Co.,  115  Mass.  304; 
Ehrgott  V.  .Mayor,  etc.,  96  N,  Y.  264,  281;  Milwaukee  &  St.  P.  R.  Co.  v.  Kel- 
logg, 94  U.  S.  469;  Clark  v.  Chambers,  3  Q.  B.  Div.  327.  It  is  enough  that 
the  damage  is  the  natural,  though  not  the  necessary,  result.  Miller  v.  St.  Louis, 
I.  M.  &  S.  Ry.  Co,  90  Mo.  389,  2  S.  W.  439;  Baltimore  City  P.  R.  Co.  v. 
Kemp,  61  Md.  74.  But  see  Brown  v.  Chicago,  M.  &  St.  P.  R.  Co.,  54  Wis.  342, 
11  N.  W.  356,  911,  and  Atkinson  v.  Transportation  Co.,  60  Wis.  141,  18  N. 
W.  764.  See,  also,  SchefCer  v.  Railroad  Co.,  105  U.  S.  249;  Binford  v.  John- 
ston, 82  Ind.  426;  Schmidt  v.  Mitchell,  84  111.  195;  Eames  v.  Railroad  Co.,  63 
Tex.  660;  Campbell  v.  City  of  Stillwater,  32  IMinn.  308,  20  N.  W.  320;  The 
Netting  Hill,  9  Prob.  Div.  105;  Childress  v.  Yourie,  Meigs  (Tenn.)  561;  Forney 
V.  Geldmacher,  75  Mo.  113;    Schrader  v.  Crawford,  94  111.  357. 

5  5  One  who  places  another,  whom  he  has  made  helplessly  drunk,  in  charge 
of  a  horse,  is  presumed  to  have  anticipated  the  injury  which  followed.  Dun- 
lap  V.  Wagner,  85  Ind.  529.  See,  also,  Mead  v.  Stratton,  87  N,  Y.  493; 
Bertholf  v.  O'Reilly,  8  Huu,  16;  Id.,  74  N.  Y.  509;  Aldrich  v.  Sager,  9  Hun.  537: 
Mulcahey  v.  Givens,  115  Ind.  286,  17  N.  E.  598;  Brink  v.  Railroad  Co.,  17  Mo. 
App.  177,  199. 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  51 

is  liable  to  any  person  injured  by  his  wrongful  acts.  But  no  per- 
son can  be  required  to  guard  against  the  extraordinary  or  unusual 
consequences  of  an  act;  and,  there  being  no  duty  to  guard  against 
them,  such  losses  are  damnum  absque  injuria,^®  The  loss — the 
damnum — is  there,  but  the  injuria  is  wanting. 

Consequential  Damages  for  Breach  of  Contract. 

"There  are  some  important  considerations  which  tend  to  limit 
damages  in  an  action  upon  contract,  which  have  no  application  to 
those  purely  of  tort.  Contracts  are  made  only  by  the  mutual  con- 
sent of  the  respective  parties;  and  each  partj^  for  a  consideration, 
thereby  consents  that  the  other  shall  have  certain  rights  as  against 
him,  which  he  would  not  otherwise  possess.  In  entering  into  the 
contract,  the  parties  are  supposed  to  understand  its  legal  effect, 
and,  consequently,  the  limitations  which  the  law,  for  the  sake  of 
certainty,  has  fixed  for  the  recovery  of  damages  for  its  breach. 
If  not  satisfied  with  the  risk  which  these  rules  impose,  the  par- 
ties may  decline  to  enter  into  the  contract,  or  may  fix  their  own 
rule  of  damages,  when,  in  their  nature,  the  amount  must  be  un- 
certain. Hence,  when  suit  is  brought  upon  such  contract,  and  it 
is  found  that  the  entire  damages  actually  sustained  cannot  be  re- 
covered without  a  violation  of  such  rules,  the  deficiency  is  a  loss, 
the  risk  of  which  the  party  voluntarily  assumed  on  entering  into 
the  contract,  for  the  chance  of  benefit  or  advantage  which  the 

56  A  woman's  illness,  resulting  from  fright,  is  not  the  natural  result  of  the 
shooting  of  a  dog.  Renner  v.  Canfield,  36  Minn.  90,  30  N.  W.  435.  Plaintiff, 
was  in  bed,  in  her  house.  A  quarrel  between  defendant  and  her  husband  so 
frightened  her  that  she  gave  premature  birth  to  a  child.  Defendant  did  not 
know  of  her  proximity,  nor  of  her  condition.  He  was  held  not  liable.  Phil- 
lips V.  Dickerson,  85  111.  11.  See,  also,  Rich  v.  Railroad  Co.,  87  N.  Y.  382; 
Allegheny  v.  Zimmerman,  95  Pa.  St.  287;  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Lucas,  119  Ind.  583,  21  N.  E.  908;  Johnson  v.  Druuunond,  16  111.  App.  641; 
Nelson  v.  Railroad  Co.,  30  Minn.  74,  14  N.  W.  300;  Royston  v.  Railroad  Co.. 
67  Miss.  376,  7  South.  320;  .Jackson  v.  Hall,  84  N.  C.  489;  Wulstoin  v.  Mohl- 
raan  (Super.  Ct)  5  N.  Y.  Supp.  569;  Ellis  v.  Cleveland,  55  Vt.  358;  Huxley  v. 
Berg,  1  Starkie,  9&;  Hampton  v.  Jones,  58  Iowa,  317,  12  N.  W.  276;  Pliyfo  v. 
Railroad  Co.,  30  Hun,  377;  Teagarden  v.  Hetfiold,  11  Ind.  522;  Gamble  v. 
Mullin,  74  Iowa,  99,  30  N.  W.  909.  Damages  for  loss  of  prospective  olTsprliift 
r-annot  be  recovered  in  an  action  for  nogligciuo  resulting  in  a  miscarriage, 
liuller  V.  Railroad  Co.,  143  N.  Y.  417,  .38  N.  E.  454. 


r)2  COMPENSATOUY    DAMACICS.  (Ch.    a 

contract  would  have  given  him  in  case  of  performance.  His  posi- 
tion is  one  in  which  lie  has  voluntarily  contributed  to  place  him- 
self, and  in  which,  but  for  his  own  consent,  he  could  not  have  been 
placed  by  the  wroniiful  act  of  the  opi)osite  party  alone. 

"Again,  in  the  majority  of  cases  upon  contract,  there  is  little  dilli- 
culty,  from  the  nature  of  the  subject,  in  finding  a  rule  by  which 
substantial  compensation  may  be  readily  estimated;  and  it  is  only 
in  those  cases  where  this  cannot  be  done,  and  where,  from  the  na- 
ture of  the  stipulation  or  the  subject-matter,  the  actual  damages 
resulting  from  a  breach  are  more  or  less  uncertain  in  their  nature, 
or  diflicult  to  be  shown  with  accuracy  by  the  evidence,  under  any 
definite  rule,  that  there  can  be  any  great  failure  of  justice  by  ad- 
hering to  such  rule  as  will  most  nearly  approximate  the  desired 
result.  And  it  is  precisely  in  these  classes  of  cases  that  the 
parties  have  it  in  their  power  to  protect  themselves  against  any 
loss  to  arise  from  such  uncertainty,  by  estimating  their  own  dam- 
ages in  the  contract  itself,  and  providing  for  themselves  the  rules 
by  which  the  amount  shall  be  measured  in  case  of  a  breach ;  and, 
if  they  neglect  this,  they  may  be  presumed  to  have  assented  to 
such  damages  as  may  be  measured  by  the  rules  which  the  law, 
for  the  sake  of  certainty,  has  adopted, 

''Again,  in  analogy  to  the  rule  that  contracts  should  be  construed 
as  understood  and  assented  to  by  the  parties  (if  not  as  a  part  of 
that  rule),  damages  which  are  the  natural,  and,  under  the  circum- 
stances, the  direct  and  necessary,  result  of  the  breach,  are  often 
very  properly  rejected,  because  they  cannot  fairly  be  considered 
as  having  been  within  the  contemplation  of  the  respective  parties 
at  the  time  of  entering  into  the  contract.  None  of  these  several 
considerations  have  any  bearing  in  an  action  purely  of  tort.  The 
injured  party  has  consented  to  enter  into  no  relation  with  the 
wrongdoer  by  which  any  hazard  of  loss  should  be  incurred;  nor 
has  he  received  any  consideration  or  chance  of  beneS^  or  advantage 
for  the  assumption  of  such  hazard;  nor  has  the  wrongdoer  given 
any  consideration  nor  assumed  any  risk  in  consequence  of  any 
act  or  consent  of  his.  The  injured  party  has  had  no  opportunity 
to  protect  himself  by  contract  against  any  uncertainty  in  the  esti- 
mate of  damages.  Mo  act  of  his  has  contributed  to  the  injury. 
He  has  yielded  nothing  by  consent;    and  least  of  all  has  he  cnn- 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  53 

sented  that  the  wrongdoer  might  talce  or  injure  his  property,  or 
deprive  him  of  his  rights,  for  such  sum  as,  by  the  strict  rules 
which  the  law  has  established  for  the  measurement  of  damages 
in  actions  upon  contract,  he  may  be  able  to  show,  with  certainty, 
he  has  sustained  by  such  taking  or  injury.  Especially  would  it 
be  unjust  to  presume  such  consent,  and  to  hold  him  to  the  recov- 
ery of  such  damages  only  as  may  be  measured  with  certainty  by 
fixed  and  definite  rules,  when  the  case  is  one  which,  from  its  very 
nature,  affords  no  elements  of  certainty  by  which  the  loss  he  has 
actually  suffered  can  be  shown  with  accuracy  by  any  evidence  of 
which  the  case  is  susceptible.  Is  he  to  blame  because  the  case 
liappens  to  be  one  of  this  character?  He  has  had  no  choice,  no 
selection.  The  nature  of  the  case  is  such  that  the  wrongdoer  has 
chosen  to  make  it;  and,  upon  every  principle  of  justice,  he  is  the 
party  who  should  be  made  to  sustain  all  the  risk  of  loss  which 
may  arise  from  the  uncertainty  pertaining  to  the  nature  of  the  case, 
and  the  difficulty  of  accurately  estimating  the  results  of  his  own 
wrongful  act."  ^^ 

Parties  enter  into  contracts  with  a  view  to  securing  some  advan- 
tage to  themselves,  and  when  one  of  them  is,  by  the  other's  breach, 
deprived  of  the  benefit  which  the  latter  contracted  he  should  re- 
ceive, the  fundamental  principle  of  compensation  requires  the  dam- 
ages for  the  breach  to  be  in  proportion  to  the  benefit  which  was 
to  have  been  received.  For  anything  amounting  to  a  direct  breach 
of  contract,  whether  foreseen  or  unforeseen,  the  party  responsible 
therefor  is  liable,  because  he  has  contracted  that  the  other  party 
shall  receive  that  very  thing;  but  he  is  not  liable  for  indirect  or 
consequential  losses  resulting  from  the  breach,  unless  they  are  such 
as  the  parties  may  reasonably  be  presumed  to  have  contemplated 
at  the  time  the  contract  was  made.'^  The  reason  is  obvious.  De- 
fendant's liability  rests  on  the  assumption  that  he  has  wrongfully 

5T  Allison  V.  Chandler,  11  Mich.  511.',  Moch.  Cas.  Dam.  09. 

58  The  use  of  the  phrase  that  "damages  must  have  been  conteniiilatcd,"  or 
that  they  must  be  such  as  "the  parties  may  be  presumed  to  have  contem- 
plated," and  the  like,  is  too  universal  to  be  gotten  rid  of.  Tlio  author  conceives 
the  phrase  to  mean  simply  that  the  bonelits  for  loss  of  which  plaint itf  claims 
compensation  must  be  such  as  the  parties  may  be  presuujcd  to  iiavc  coutem- 
plated. 


/■)4  COM  PENS  ATOUY    DAMAGES.  (Ch.   3 

deprived  plaintiff  of  a  benefit  which  ho  had  contracted  plaintiff 
should  receive;  but,  as  to  benefits  dependent  on  circumstances  un- 
known to  him,  defendant  has  made  no  contract,  and  is  therefore  not 
liable  for  their  loss. 

lldiUcy  V.  liiixcndale. 

In  Iladley  v.  Baxendale  ^°  an  attempt  was  made  to  settle  this 
branch  of  the  law,  and  a  rule  was  laid  down  to  govern  the  award  of 
damages  for  breach  of  contract,  that  has  been  generally  accepted 
both  in  England  and  America.^"  In  this  case  the  plaintiffs  were 
owners  of  a  steam  mill.  The  shaft  was  broken,  and  they  gave  it  to 
the  defendant,  a  carrier,  to  take  to  an  engineer,  to  serve  as  a  model 
for  a  new  one.  On  making  the  contract,  defendant's  clerk  was 
informed  that  the  mill  was  stopped,  and  that  the  shaft  must  be 
sent  immediately.  He  delayed  its  delivery;  the  shaft  was  kept 
back  in  consequence;  and,  in  an  action  for  breach  of  contract,  plain- 
tiffs claimed  as  special  damages  the  loss  of  profits  while  the  mill 
was  kept  idle.  It  was  held  that,  if  the  carrier  had  been  made  aware 
that  a  loss  of  profits  would  result  from  a  delay  on  his  part,  he  would 
have  been  answerable.  But,  as  it  did  not  appear  that  defendant 
knew  that  the  want  of  the  shaft  was  the  only  thing  which  was  keep- 
ing the  mill  idle,  he  could  not  be  made  responsible  to  such  an  ex- 
tent. The  court  said:  ''^^e  think  the  proper  rule  in  such  a  case 
as  the  present  is  this:  Where  two  parties  have  made  a  contract 
which  one  of  them  has  broken,  the  damages  which  the  other  party 
ought  to  receive  in  respect  to  such  breach  of  contract  should  be 
such  as  may  fairly  and  reasonably  be  considered  either  arising 
naturally — i.  e.  according  to  the  usual  course  of  things — from  such 
breach  of  contract  itself,  or  such  as  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  both  parties  at  the  time  they 
made  the  contract,  as  the  probable  result  of  the  breach  of  it.  Now, 
if  the  special  circumstances  under  which  the  contract  was  actually 
made  were  communicated  by  the  plaintiffs  to  the  defendants,  and 
<hus  known  to  both  parties,  the  damages  resulting  from  the  breach 

59  9  Exch.  341,  23  Law  J.  Exch.  179;   IS  .Tur.  35S;   2G  Eng.  Law  &  Eq.  :J9S. 

«o  It  is  said  in  a  note  to  Sedgwick  on  Damages  (page  203)  that  so  entirely  is 
the  later  law  founded  on  this  case  that  the  great  body  of  cases  since  decided, 
involving  the  measure  of  damages  for  breach  of  contract,  resolve  themselves 
into  a  continuous  commentary  upon  it. 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  55 

of  such  a  contract  which  they  would  reasonably  contemplate  would 
be  the  amount  of  injury  which  would  ordinarily  follow  from  a  breach 
of  contract  under  these  special  circumstances  so  known  and  com- 
municated. But,  on  the  other  hand,  if  these  special  circumstances 
were  wholly  unknown  to  the  party  breaking  the  contract,  he,  at 
most,  could  only  be  supposed  to  have  had  in  his  contemplation  the 
amount  of  injury  which  would  arise  generally,  and,  in  the  great 
multitude  of  cases,  not  affected  by  any  special  circumstances,  from 
such  a  breach  of  contract;  for,  had  the  special  circumstances  been 
known,  the  parties  might  have  specially  provided  for  the  breach  of 
contract  by  special  terms  as  to  the  damages  in  that  case,  and  of  this 
advantage  it  would  be  very  unjust  to  deprive  them.  The  above 
principles  are  those  by  which  we  think  the  jury  ought  to  be  guided 
in  estimating  the  damages  arising  out  of  any  breach  of  contract."  *^ 
Three  rules  may  be  deduced  from  Hadley  v.  Baxendale:  First, 
that  damages  which  may  fairly  and  reasonably  be  considered  as 
naturally  arising  from  a  breach  of  contract,  according  to  the  usual 
course  of  things,  are  always  recoverable;  secondly,  that  damages 
which  would  not  arise  in  the  usual  course  of  things  from  a  breach 

61  The  statement  of  the  rule  is  open  to  criticism,  and,  unexplained,  is  some- 
times misleading:  "What  is  meant  by  the  words  'in  contemplation  of  the  par- 
ties'? It  would  seem  that  contracting  parties— certainly  honest  ones— do  not 
contemplate  the  breach  of  their  contracts  when  they  enter  into  them,  and  hence 
cannot  contemplate  the  consequences  of  a  breach.  *  *  *  We  are  aware  that 
the  language  or  phrase  we  have  been  criticising  has  been  repeated  and  re-re- 
peated in  many  judicial  opinions.  It  has  come  to  be  almost  a  stereotyped 
phrase;  so  general  that  it  may  appear  to  be  temerity  in  us  to  question  its  pro- 
priety. We  think,  however,  it  is  in  itself  inapt  and  inaccurate,  and  that  its 
import  has  been  greatly  and  frequently  misunderstood.  It  is  often  employed 
in  apposition  to,  or  as  the  synonym  of,  that  other  qualifying  clause,  'the  nat- 
ural result  of,'  or  'in  the  usual  course  of  things.'  We  think  this  a  great  de- 
parture from  the  sense  in  which  Baron  Alderson  intended  it  should  be  under- 
stood. Altogether,  we  think  it  obscure  and  misleading,  and  tliat  an  attempt  to 
install  it  as  one  of  the  canons  has  caused  many,  very  many,  erroneous  rulings." 
Daughtery  v.  Telegraph  Co.,  75  Ala.  168,  17(5.  Substantially  the  same  criti- 
cism was  made  by  Baron  Martin,  who  participated  in  the  decision  of  Iladloy 
V.  Baxendale,  in  Wilson  v.  Dock  Co.,  L.  K.  1  K\ch.  177.  In  New  York  the 
phrase,  "such  as  may  fairly  be  supposed  to  have  been  in  contemplation  of  the 
parties,"  is  used  as  the  equivalent  of  "the  usual  course  of  things."  This  lias 
If'd  to  much  confusion.     See  Scdg.  Uani.  '-'(JD. 


56  COMPENSATORY    DAMAGES.  (Ch.    O 

of  contract,  but  which  do  arise  from  circumstances  peculiar  to  the 
special  case,  are  not  recoverable  unless  the  special  circumstances 
are  known  to  the  person  who  has  broken  the  contract ;  thirdly,  that 
where  the  special  circumstances  are  known,  or  have  been  communi- 
cated to  the  person  who  breaks  the  contract,  and  where  the  damage 
complained  of  flows  naturally  from  the  breach  of  contract  under 
those  special  circumstances,  then  such  special  damage  must  be  sup- 
posed to  have  been  contemplated  by  the  parties  to  the  contract,  and 
is  recoverable.  A  further  rule  is  implied,  viz.  that  damage  which 
cannot  be  considered  as  fairly  and  naturally  arising  from  breach  of 
contract  under  any  given  circumstances  is  not  recoverable,  whether 
those  circumstances  were  or  were  not  known  to  the  person  who  is 
being  charged.*^ 

First  rule  of  Hadley  v.  Baxendale — Damages  Arising  under  Ordinary  Cir- 
cuvistanccs. 
Under  the  rule  of  Hadley  v.  Baxendale,  actual  contemplation  of 
the  consequences  of  a  breach  of  contract  is  not  at  all  essential  to 
liability,  if  the  consequences  are  in  fact  natural  ones.  Under  the 
doctrine  of  that  case,  damages  may  be  recovered  for  both  the  nat- 
ural consequences  of  the  breach, — that  is,  such  consequences  as 
would  ordinarily  result  from  a  breach  of  similar  contracts, — and 
such  consequences  as  seem  natural  only  in  the  light  of  special  cir- 
cumstances communicated  to  defendant  at  the  time  the  contract 
was  made.®^  "It  is  presumed  that  the  parties  contemplate  the 
usual  and  natural  consequences  of  a  breach  when  the  contract  is 
made;  and,  if  the  contract  is  made  wdth  reference  to  special  cir- 
cumstances fixing  or  affecting  the  amount  of  damages,  such  special 
circumstances  are  regarded  as  W'ithin  the  contemplation  of  the  par- 
es Mayne,  Dam.  10. 

0  3  Sedg.  Dam.  §  148.  Soo,  also,  Little  v.  Railroad  Co.,  GG  Me.  239;  CoUard 
V.  Railroad  Co.,  7  Hurl.  &  N.  79;  Gee  v.  Railroad  Co.,  G  Hurl.  &  N.  211; 
Wilson  V.  Railroad  Co.,  9  C.  B.  (N.  S.)  632;  Wilson  v.  Dock  Co.,  L.  R. 
1  Exch.  177;  Baldwin  v.  Telegraph  Co.,  4.5  N.  Y.  744.  750;  Ward  v. 
New  York  C.  R.  Co.,  47  N.  Y.  29,  32.  In  an  action  again.st  a  gaslight 
company  for  wrongfully  refusing  to  furnish  plaintiff's  store  with  gas.  dam- 
ages may  be  recovered  for  inconvenience  in  tran.sacting  business,  and  for 
loss  of  business  owing  to  the  store  being  less  attractive  to  customers.  Shepard 
V.  Gaslight  Co.,  15  Wis.  349. 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  57 

ties,  and  damages  may  be  assessed  accordingly,"  ^*  This  is  well 
illustrated  b}'  an  English  case.^^  The  defendants  had  built  a  float- 
ing boom  derrick,  which  had  been  left  on  their  hands.  Plaintiffs 
.agreed  to  buy  the  hull  of  the  derrick,  which  defendants  were  to 
«mpty  of  machinery,  and  deliver,  bj'  a  certain  date.  Plaintilfs  in- 
tended to  place  in  the  hull  hydraulic  cranes  to  transship  coal  from 
•colliers  to  barges  without  the  necessity  of  any  intermediate  land- 
ing. This  purpose  was  entirely  novel  and  unknown  to  defendants, 
who  supposed  that  plaintiffs  intended  to  ase  the  hull  for  a  coal 
store,  which  was  the  most  obvious  use  to  which  such  a  vessel  could 
be  applied  by  a  person  in  the  coal  trade,  though  the  vessel  itself, 
l)eing  the  first  of  its  kind  ever  built,  was  entirely  novel,  and  had 
never  been  applied  to  such  a  purpose.  If  the  vessel  had  been  in- 
tended as  a  coal  store,  as  defendants  contemplated,  plaintiffs  would 
liave  been  damaged  £420  by  its  nondelivery  at  the  time  fixed;  but 
they  in  fact  suffered  much  greater  damage,  owing  to  preparations 
to  use  it  in  the  manner  for  which  it  was  bought.  Plaintiffs  con- 
<-eded  that  this  greater  sum  could  not  be  recovered  because  such 
purpose  was  univnown  to  defendants;  and  defendants  contended 
that,  under  the  rule  of  Hadley  v.  Baxendale,  even  the  £420  could  not 
toe  recovered,  because  such  loss  resulted  from  inability  to  use  the 
vessel  in  a  manner  not  contemplated  by  plaintiffs.  It  was  held, 
however,  that  defendants  were  liable  for  the  £420,  as  that  loss  was 
the  natural  consequence  of  the  breach;  the  use  of  the  hull  as  a 
■coal  store  being  the  most  obvious  use  to  which  it  was  applicable. 
Blackburn,  J.,  said :  "That  argument  seems  to  assume  that  the  prin- 
-ciple  laid  down  in  Hadley  v.  Baxendale  is  that  the  damages  can  only 
be  what  both  parties  contemplated,  at  the  time  of  making  the  con- 
tract, would  be  the  consequence  of  the  breach  of  it;  but  that  is  not 
the  principle  of  Hadley  v.  Baxendale.  The  court  say:  'We  think 
the  proper  rule  in  such  a  case  as  the  present  is  this:  Where  two 
parties  have  made  a  contract,  which  one  of  them  has  broken,  the 
damages  which  the  other  party  ought  to  receive  in  respect  of  such 

«*  Booth  V.  Spuyten  Duyvil  Rolling-Mlll  Co..  GO  N.  Y.  487,  41)2.  See  Devlin 
V.  Mayor,  etc.,  G:?  N.  Y.  8,  2.^. 

«8  Cory  V.  Thames,  I.  W.  &  S.  B.  Co.,  L.  R.  3  Q.  B.  181,  188.  See,  also, 
F.llilnfior  Actlen-GosellsrhnlTt  fiir  Fabrication  von  Elsonliahn  Materiel  v.  .\rni- 
i^lronj,'.  L.  R.  9  Q.  B.  47:'.,  4:'.  l,:i\v  .1.  (}.  B.  'J  11. 


58  COMPENSATORY    DAMAGES.  (Ch.   3- 

breach  of  contract  should  be  such  as  may  fairly  and  reasonably  be 
considered,  either  arising  naturally — i.  e.  according  to  the  usual 
course  of  things — from  such  breach  of  contract  itself  [that  is  one 
alternative],  or  such  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach  of  it,'  "  ®* 

The  first  rule  of  ITadley  v.  Baxendale — that  is,  that  damages  aris- 
ing naturally  from  a  breach  of  contract  may  be  recovered,  whether 
actually  contemplated  or  not — simply  means  that  compensation  may 
be  recovered  for  the  loss  of  those  benefits  which,  by  a  fair  construc- 
tion of  the  contract,  the  parties  intended,  or  must  be  presumed  to 
have  intended,  to  confer. 

Second  Rule  of  Hadley  v.  Baxendale — Damages  Arising  from  Circumstances 
not  Contemplated. 

Damages  resulting  from  a  breach  of  contract  which  were  not  con- 
templated b}'  defendant,  but  arise  from  special  circumstances  un- 
known to  him,  cannot  be  compensated.  This  is  the  second  rule  of 
Hadley  v.  Baxendale,  and  the  one  which  governed  the  decision  in 
that  case.  Compensation  is  refused  in  such  cases  for  the  reason 
that  the  loss  is  not  a  natural  and  probable  consequence  of  the 
breach.  Under  no  circumstances  can  compensation  be  recovered 
for  losses  which  do  not  flow^  naturally  and  probably — i.  e.  proxi- 
mately— from  the  act  complained  of.  The  rule  allowing  compensa- 
tion for  losses  arising  from  special  circumstances,  w^hen  such  cir- 
cumstances were  made  known  to  defendant,  is  no  exception  to  thi» 
principle,  for  such  losses  are  in  fact  natural  consequences.  The 
only  effect  of  notice  of  special  circumstances  is  to  enlarge  the  do- 
main of  natural  consequences,^^  and  make  certain  consequences 
natural  which  would  not  be  such  otherwise.  Only  the  natural  and 
proximate  consequences  of  the  facts  made  known  can  be  recovered. 
The  stoppage  of  a  mill  is  not  a  natural  result  of  a  failure  to  deliver 
goods,  and  cannot  be  compensated  unless  defendant  had  notice  that 
it  would  result  from  a  nondelivery.®^      Nor  is  loss  of  hire  of  goods  a 

8«  See.  also.  Hammond  v.  Bussey,  20  Q.  B.  Div.  79,  8S. 

«7  Sedgr.  Dam.  §  157.  See  Thomson-Houston  Electric  Ck).  of  New  York  v.  Du- 
rant  Land-Imp.  Co..  144  N.  Y.  34,  39  \.  E.  7. 

6  8  Gee  V.  Railroad  Co.,  G  Hurl.  &  N.  211;  Hadley  v.  Baxendale,  supra.  For 
breach  of  a  warranty  that  a  horse  is  kind,  the  only  damages  in  contemplatioi> 


§§    27-28)  CONSEQUENTIAL    DAMAGES.  59 

natural  consequence  of  a  carrier's  delay  in  delivering  them,  where 
the  carrier  was  not  informed  of  the  purpose  for  which  they  were 
shipped.^®  So,  also,  in  the  absence  of  notice,  no  consequential  dam- 
ages can  be  recovered  for  delay  in  transmitting  cipher  telegrams.^** 
The  rule  that  damages  for  breach  of  contract,  arising  from  special 
circumstances  not  known  to  defendant  cannot  be  recovered  would 
seem  to  be  almost  a  truism.  Starting  with  the  proposition  that 
damages,  to  be  recoverable  in  any  case,  must  be  natural  and  prob- 
able,— i.  e.  proximate, — by  the  very  definition  of  "natural"  and  "prob- 
able," damages  dependent  on  special  and  unknown  circumstances 
are  excluded. 

of  the  parties  in  consequence  of  a  breach  is  the  diminution  in  value  of  the 
horse,  and  compensation  for  the  brealiing  of  plaintiff  s  wagon  and  harness  in 
consequence  of  the  unkindness  of  the  horse  cannot  be  recovered.  Case  v. 
Stevens,  137  Mass.  551.  A  carrier  is  not  liable  for  damages  for  delay  in  the 
construction  of  a  house  caused  by  its  loss  of  plans.  Mather  v.  American 
Exp.  Co.,  138  Mass.  55.  Damages  for  breach  of  a  contract  to  supply  boilers  to 
be  used  in  a  pleasure  boat  at  a  summer  resort  are  the  rental  value  of  the  boat 
during  the  period  of  delay.  Brownell  v.  Chapman,  84  Iowa,  504,  51  N.  W.  249. 
Where  there  is  a  special  contract  to  deliver  apples  to  a  connecting  carrier  by  a 
certain  date,  made  for  the  purpose  of  avoiding  the  danger  of  the  apples 
freezing  on  the  connecting  line,  damage  to  the  apples  by  freezing  is  a  natural 
consequence  of  delay.  Fox  v.  Boston  &  M.  R.  Co.,  148  Mass.  220,  19  N.  E.  22::. 
Demurrage  paid  to  a  railroad  company  is  a  natural  consequence  of  a  breach 
of  contract  to  load  tiles  on  a  vessel  from  a  train.  Welch  v.  Anderson,  Gl  Law 
.J.  Q.  B.  167. 

6  9  Hales  V.  Railroad  Co.,  4  Best  &  S.  66,  32  Law  J.  Q.  B.  292;  Frazer  v.  Smith, 
(iO  111.  145.  See,  also.  New  York  Academy  of  Music  v.  Hackctt,  2  Hilt.  217; 
Morgan  v.  Negley,  53  Pa.  St.  153;  Arrowsmith  v.  Gordon,  3  La.  Ann.  105; 
Brock  v.  Gale,  14  Fla.  523;  Benziger  v.  Miller,  50  Ala.  206;  Aldrich  v.  Goodcll, 
75  111.  452;  Piper -v.  Kingsbury,  48  Vt.  4S0;  Prosser  v.  Jones,  41  Iowa,  674; 
Halloway  v.  Stephens,  2  Thomp.  &  C.  (N.  Y.)  658;  Fort  v.  Orndoff,  7  Heisk. 
(Tenn.)  167;  Keith's  Ex'r  v.  Hiukston,  9  Bush  (Ky.)  283;  Noble  v.  Ames 
Manuf'g  Co.,  112  Mass.  492.  \V  here  a  machine  is  totally  ruined  in  trans- 
portation, the  carrier  is  liable  for  its  whole  value;  but,  where  it  had  no  notice 
that  the  machine  was  to  be  used  by  plaintiff  in  his  business,  it  is  not  liable 
for  the  loss  of  the  use  of  the  machine  while  another  was  being  procured  to 
supply  the  place  of  the  one  destroyed.  Thomas,  B.  &  W.  Manuf'g  Co.  v. 
Wal)asli,  St.  L.  &  P.  Ry.  Co.,  62  Wis.  642,  22  N.  W.  827. 

70  Mackay  v.  W.  U.  Tel.  Co.,  16  Nev.  222;  Cannon  v.  Same,  100  N.  C.  300, 
6  S.  E.  731;  Daniel  v.  Same,  61  Tex.  452;  Candoo  v.  Same.  31  Wis.  471.  Con- 
tra, Daughtery  v.  American  Union  Tel.  Co.,  75  Ala.  168.     Sue  posi,  p.  2.S9. 


(jO  COMPKNSATOllY    DAMAGES.  i.Ch.   3 

Third  L'ide  of  Ilndlctj  v.  Baxendale — Notice  of  Special  Circumstances. 

When,  at  the  time  of  making  a  contract,  notice  is  given  of  thf 
purpose  of  making  it,  or  of  special  circumstances  affecting  the  quan- 
tum of  danuigt's  likely  to  result  from  a  breach,  damages  may  be  re- 
covered for  all  the  natural  and  probable  consequences  of  a  breach 
under  those  circumstances.''^      This  is  the  third  rule  of  Hadley  v, 

^1  In  au  action  for  breach  of  a  contract  wliich  was  made  to  enable  plaiutilt' 
10  fuUill  another  contract  with  a  third  person,  of  which  purpose  defendant  had 
notice,  damages  for  the  loss  on  such  subcontract  may  be  recovered.  Berries 
V.  Hutchinson,  IS  C.  B.  (N.  S.)  445,  403;  Elbinger  Actien-Gesellschafft  fiir 
Fabrication  von  Eisenbahn  Materiel  v.  Armstrong,  L.  R.  9  Q.  B.  473,  479; 
Hinde  v.  Liddell,  L.  11.  10  Q.  B.  265;  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  Div. 
85,  89;  Messmore  v.  New  York  Shot  &  Lead  Co.,  40  N.  Y.  422.  Where  there 
is  notice  of  a  subcontract,  but  not  of  the  price,  if  the  price  is  reasonable  the 
profits  of  the  subcontract  may  be  recovered.  Illinois  Cent.  R.  Co.  v.  Cobb,  04 
111.  128;  Cobb  v.  Illinois  Cent.  R.  Co.,  38  Iowa,  001.  And  see  Harper  v.  Miller,  27 
Ind.  277.  Otherwise  not.  Home  v.  Midland  R.  Co.,  L.  R.  7  C.  P.  583;  Home  v. 
Midland  R.  Co.,  L.  R.  8  C.  P.  131;  Lewis  v.  Rountree,  79  N.  C.  122.  One  who 
sells  a  cow  to  a  farmer  has  notice  that  she  will  be  placed  with  other  cattle, 
and,  in  action  for  breach  of  warranty  that  she  is  free  from  foot  and  mouth 
disease,  damages  may  be  recovered  for  loss  of  other  cattle  to  which  the 
disease  was  communicated.  Smith  v.  Green,  1  C.  P.  Div.  92.  See,  also,  ante. 
note  20. 

A  defendant  has  notice  that,  in  the  usual  course  of  business,  goods  bought  by 
a  dealer  will  be  resold.  Hammond  v.  Bussey,  20  Q.  B.  Div.  79;  Thorne  v. 
McVeagh,  75  111.  81.  A  contract  may  be  of  such  a  nature  as  to  necessarily 
contemplate  subcontracts,  as,  for  example,  building  contracts,  and  therefore 
damages  may  be  recovered  arising  out  of  such  subcontracts.  Smith  v.  Flan- 
ders, 129  Mass.  322;  McHose  v.  Fulmer,  73  Pa.  St.  305.  The  damage  nat- 
urally resulting  from  the  breach  of  an  ordinary  contract  of  sale,  and  therefore 
presumably  contemplated,  is  the  difference  between  the  contract  price  and  the 
market  price,  if  the  goods  have  a  market  price;  otherwise  it  is  the  difference 
between  the  contract  price  and  the  actual  value.  Rhodes  v.  Baird,  10  Ohio 
St.  573.  But  where  the  purchase  is  made  with  a  view  to  a  known  resale  al- 
ready contracted,  the  damages  for  a  breach  are  the  difference  between  the  two 
contract  prices.  Booth  v.  Spuyten  Duyvil  Rolling-Mill  Co.,  00  N.  Y.  487; 
Carpenter  v.  First  Nat.  Bank,  119  III.  354,  10  N.  B.  18.  Where  there  is  notice 
of  special  use  or  need  for  goods.  See  Fletcher  v.  Tayleur,  17  C.  B.  21;  Schulze 
V.  Great  Eastern  R.  Co.,  19  Q.  B.  Div.  30;  Fox  v.  Railroad  Co.,  148  Mass. 
220,  19  N.  E.  222;  Smeed  v.  Foord,  1  El.  &  El.  002;  Simpson  v.  Railroad  Co., 
1  Q.  B.  Div.  274;  Richardson  v.  Chynoweth,  20  Wis.  050;  Hamilton  v.  Western 
N.  C.  R.  Co..  96  N.  C.  398.  3  S.  E.  104;  Deming  v.  Grand  Triink  R.  Co.,  48  N.  H. 
455;  Gee  v.  Railroad  Co.,  6  Hurl.  &  N.  211;  Jones  v.  National  Printing  Co.,  13 


§§    27-2SJ  CONSEQUENTIAL    DAMAGES.  61 

Baxendale.  The  reason  for  it  is  found  in  tlie  fundamental  prin- 
ciple of  compensation  underlying  the  entire  law  of  damages.  The 
amount  of  benefit  which  a  party  to  a  contract  would  derive  from  its 
performance  is  the  measure  of  damages  for  its  breach.^'  Where 
defendant  knows  that  plaintiff  contracts  for  the  purpose  of  secur- 
ing a  special  benefit,  he  must  be  deemed  to  have  contracted  that 
plaintiff  should  receive  such  benefit,  and  he  is  liable  for  a  breach 
accordingly.  The  intention  of  the  parties  must  be  arrived  at  by 
interpreting  the  contract  in  the  light  of  the  surrounding  circum- 
stances known  to  both  parties,  and  such  circumstances  form  as 
much  a  part  of  the  contract  as  if  they  were  written  into  it.  If  the 
special  circumstances  were  in  fact  written  into  the  contract,  the 
damages  arising  from  a  breach  under  those  circumstances  would 
be  direct,  and  not  consequential. '^^  If  a  contract  of  sale  is  made 
to  enable  the  vendor  to  secure  a  special  benefit,  and  that  object  is 
known  to  defendant,  the  principle  of  just  compensation  requires  him 
to  make  good  its  loss  arising  from  his  failure  to  deliver  the  goods.''* 
In  such  case,  the  contract,  interpreted  in  the  light  of  the  object  for 

Daly.  92;  Vickery  v.  MeCormick,  117  Ind.  594,  20  N.  E.  495.  Where  there 
is  notice  of  special  use  for  premises.  See  Hexter  v.  Knox,  63  N.  Y.  561;  Town- 
send  V.  Nickerson  Wharf  Co.,  117  Mass.  501;  Haven  v.  Wakefield,  39  111.  509. 
Notice  of  special  use  of  funds.  Grindle  v.  Eastern  Exp.  Co.,  67  Me.  317.  The 
damages  recoverable  are  such  as  ordinarily  arise  according  to  the  intrinsic  na- 
ture of  the  contract,  and  the  surrounding  facts  and  circumstances  made  known 
to  the  parties  at  the  time  of  making  it.  Suth.  Dam.  §  51;  Davis  v.  Talcott, 
14  Barb.  611;  Cobb  v.  Railroad  Co.,  38  Iowa,  601;  Haven  v.  Wakefield,  39  111. 
509;  Illinois  Cent.  R.  Co.  v.  Cobb,  64  111.  128;  Wmne  v.  Kelley,  34  Iowa,  3.TJ; 
^'an  Arsdale  v.  Rundel,  82  111.  63;  Rogers  v.  Bemus,  69  Pa.  St.  432;  Hinckley 
V.  Beckwith,  13  Wis.  34;  Leonard  v.  New  York,  etc.,  T.  Co.,  41  N.  Y.  544;  Scott 
V.  Rogers,  31  N.  Y.  676;  Hexter  v.  Knox,  63  N.  Y.  561;  True  v.  Telegraph  Co., 
60  Me.  9;  Fletcher  v.  Tayleur,  17  C.  B.  21;  Squire  v.  Telegraph  Co.,  98  Mass. 
232;  Borradaile  v.  Brunton,  8  Taunt.  535;  In  re  Trent  &  Huraber  Co.,  L.  R. 
G  Eq.  390;  Dewint  v.  Wiltse,  9  Wend.  325;  Dobbins  v.  Duquid,  65  111.  464; 
Shepard  v.  Milwaukee  (Jas-Light  Co.,  15  AVis.  318;  Richardson  v.  Chyuoweth. 
26  Wis.  6.j6;  Wolcott  v.  Mount,  36  N.  J.  Law,  262;  Benton  v.  Fay,  64  111.  417; 
Grindle  v.  Eastern  Exp.  Co.,  67  Me.  317;  Ilaiiiilton  v.  M:igill,  12  L.  U.  Ir. 
186,  204. 

72  Alder  v.  Keighley,  15  Mccs.  &  W.  117. 

-■?  Suth.  Dam.  §  .50;    Sedg.  Dam.  §  160. 

■J-*  Hammer  v.  Schoenfeldor,  47  Wis.  1."),  2  .\.  W.  1129.  See,  also.  Maiiniii.u 
V.  Filch,  i:;8  .Ma.ss.  273;    Bccinan  v.  U:iiil:i,  118  N.  V.  ."i.-.s,  2:'.  .\.  K.  SS7. 


62  COMPENSATORY    DAMAGES.  (Ch.   3 

which  it  was  made,  is  more  than  a  mere  contract  of  sale.'"^  The 
notice  cannot  require  the  performance  of  any  additional  act  to  ful- 
fill the  contract,  for  that  would  be  making  a  new  and  different  con- 
tract, and  a  written  contract  could  not  be  so  varied  by  parol.  A 
verbal  notice  is  sufllcient  to  enlarge  the  damages  recoverable  for 
the  breach  of  a  written  contract.^ ^ 

Mere  knowledge  will  not  increase  the  damages  recoverable  for  a 
breach.'^  The  knowledge  must  be  brought  home  to  the  party 
sought  to  be  charged,  under  such  circumstances  that  he  must  know 
that  the  person  he  contracts  with  reasonably  believes  that  he  ac- 
cepts the  contract  with  the  special  condition  attached  to  if®  Mr. 
Sedgwick  says  ^^  that  the  notice  must  form  the  basis  of  the  contract, 
but  need  not  form  part  of  it,  whatever  that  may  mean.  Mr.  ^layne 
states  the  result  of  the  decisions  on  this  subject  as  follows  i^**  "First. 
Where  there  are  special  circumstances  connected  with  a  contract 
which  may  cause  special  damage  to  follow  if  it  is  broken,  mere  no- 
tice of  such  special  circumstances  given  to  one  party  will  not  render 
him  liable  for  the  special  damage,  unless  it  can  be  inferred  from  the 
whole  transaction  that  he  consented  to  become  liable  for  such  spe- 
cial damage.  Secondly.  Where  a  person  who  has  knowledge  or 
notice  of  such  special  circumstances  might  refuse  to  enter  into  the 
contract  at  all,  or  might  demand  a  higher  remuneration  for  enter- 
ing into  it,  the  fact  that  he  accepts  the  contract  without  requiring 
any  higher  rate  will  be  evidence,  though  not  conclusive  evidence, 

7  5  Suth.  Dam.  §  50. 

7  6  See  Hydraulic  Enjjineering  Co.  v.  M'Haffie,  4  Q.  B.  Div.  G70. 

T7  Sedg.  Dam.  §  150;  Wood,  Mayne,  Dam.  §  36;  Biiti-sh  Columbia  &  "Vancou- 
ver's Island  Spar  Lumber  &  Saw-Mill  Co.  v.  Nettleship,  L.  K.  3  C.  P.  499,  37 
Law  J.  C.  P.  235. 

7  8  British  Columbia  &  Vancouver's  Island  Spar  Lumber  &  Saw-Mill  Co.  v. 
Nettleship,  L.  R.  3  C.  P.  499,  37  Law  J.  C.  P.  235;  Smeed  v.  Foord,  1  El.  &  El. 
G02,  G08;  Booth  v.  Spuyten  Duyvil  Rolling-Mill  Co.,  GO  N.  Y.  487;  Clark  v. 
Moore,  3  Mich.  55,  Gl;  Snell  v.  Cottiugham,  72  111.  IGl;  Home  v.  Midland  K. 
Co.,  L.  R.  8  C.  P.  131;  Elbinger  Actien-Gesellschafft  fiir  Fabrication  von  Eison- 
bahn  Materiel  v.  Armstrong,  L.  R.  9  Q.  B.  473,  43  Law  J.  Q.  B.  211. 

7  9  Sedg.  Dam.  §  IGO.  citing  Cory  v.  Thames  I.  W.  &  S.  B.  Co.,  L.  R.  3  Q.  B. 
181,  in  which  the  damages  were  held  to  be  natural  consequences,  and  the 
question  of  notice  was  therefore  immaterial,  and  Baldwin  v.  United  States 
Tel.  Co.,  45  N.  Y.  744. 

«o  Wood,  Mayne,  Dam.  §  41. 


■§§    27-28)  CONSEQUENTIAL    DAMAGES.  63 

from  which  it  ma}'  be  inferred  that  he  has  accepted  the  additional 
risk  in  case  of  breach.  Thirdly.  Where  the  defendant  has  no  option 
of  refusing  the  contract,®^  and  is  not  at  liberty  to  require  a  higher 
rate  of  remuneration,  the  fact  that  he  proceeded  in  the  contract  after 
knowledge  or  notice  of  such  special  circumstances  is  not  a  fact  from 
which  an  undertaking  to  incur  a  liability  for  special  damages  can  be 
inferred." 
General  Result  of  Hadley  v.   Baxendale. 

Hadley  v.  Baxendale  introduced  no  new  rule  of  damages.®^  It  is 
simply  a  statement,  in  rather  more  specific  form,  of  the  general  prin- 
ciple that  damages,  to  be  recoverable,  must  be  natural  and  probable. 
To  determine  the  natural  and  probable  results  of  a  breach  of  con- 
tract, we  must  first  know  its  meaning,  and  we  learn  this  by  inter- 
preting the  contract  in  the  light  of  all  the  circumstances  known  to 
the  parties  at  its  execution.  Liability  in  cases  of  contract  is 
founded  on  consent.  One  can  reasonably  be  presumed  to  consent 
to  liability  only  for  what  is  at  the  time  natural  and  probable  under 
the  circumstances  then  contemplated.  Consequences  that,  in  the 
usual  course  of  things,  follow  the  breach  of  similar  contracts,  are 
natural  consequences;  and  the  parties  may  fairly  be  presumed  to 
have  contemplated  them,  and  to  have  consented  to  liability  to  that 
extent  in  case  of  breach.  Where  the  damages  arise  from  special 
circumstances,  the  parties  cannot  be  presumed  to  have  contemplated 
them,  and  to  have  consented  to  liability,  unless  such  circumstances 
were  made  known  to  them.  Where  such  circumstances  are  in  fact 
made  known,  there  is  no  longer  any  reason  for  treating  them  as 
special,  and  damages  arising  under  such  circumstances  are  consid- 
ered natural  and  probable. 
Motive  Inducing  Breach. 

Since  liability  for  a  breach  of  contract  is  dependent  on  the  cir- 
cumstances known  at  its  execution,  the  motive  which  induced  the 
violation  of  the  contract  cannot  be  shown  either  to  increase  or  di- 
minish the  amount  of  the  recovery.  Actions  for  breach  of  promise 
of  marriage  constitute  the  only  exception  to  this  rule.  "It  fre- 
quently happens  that  circumstances  of  fraud,  malice,  or  vioh'nce 
give  rise  to  an  action  of  tort  as  an  alternative  remedy;    but,  where 

81  As  in  case  of  coiuuiou  tanifis.  82  JSedg.  Dam.  211. 


04  COMPENSATORY    DAMAGES.  (Ch.    5 

i\\v  plaintifT  chooses  to  sue  upon  tlie  eouti'act,  he  lets  in  all  the  con- 
sequences of  that  form  of  action."  ^^  It  has  sometimes  been  held 
that,  for  breach  of  a  contract  to  convey  land,  the  vendor  would  be 
liable  to  higher  damages  if  he  had  acted  in  bad  faith  than  if  he  had 
acted  innocently.  The  cases  are  conflicting,  and  will  be  considered 
in  a  later  chapter.**  In  England  the  doctrine  has  been  finally  over- 
ruled. 'The  fraud  may  give  rise  to  an  action  for  deceit.  But,  as- 
long  as  the  plaintiff  chooses  to  sue  for  breach  of  contract,  he  cannot,, 
by  establishing  misconduct  on  the  part  of  the  defendant,  alter  the 
rule  by  which  damages  for  breach  of  contract  are  assessed."  *' 


AVOIDABLE  CONSEQUENCES. 

29.  Compensation  cannot  be  recovered  for  injuries  "w^liich 
the  injured  party,  by  due  and  reasonable  diligence, 
after  notice  of  the  wrong,  could  have  avoided.  Such 
consequences  are  regarded  as  remote,  the  injured 
party's  -will  having  intervened  as  an  independent 
cause. 

Compensation  for  a  wrong  is  limited  to  such  consequences  as  the 
injured  party  could  not  have  avoided  by  reasonable  diligence.*^  All 
other  consequences  are  regarded  as  remote.®"  The  rule  is  the  same 
in  cases  of  contract  and  cases  of  tort.**  The  injured  party's  own 
negligence  or  willful  fault  in  failing  to  take  reasonable  precautions 
to  reduce  the  damage,  after  notice  of  defendant's  wrong,  is  the  proxi- 

83  Wood,  Mayue,  Dam.  §  45.  84  Post,  c.  13. 

85  Wood,  Mayne,  Dam.  §  4G. 

8  0  Loker  v.  Damon,  17  Pick.  284;  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Birney,  71 
111.  3'Jl;  Salladay  v.  Town  of  Dodgeville,  85  Wis.  818.  55  N.  W.  69G;  Brant  v. 
(lallup,  111  111.  487;  Grindle  v.  Eastern  Exp.  Co.,  67  Me.  317;  Sutherland  v. 
Wyer,  Id.  G4;  Simpson  v.  City  of  Keokuk,  34  Iowa,  568.  Recovery  for  re- 
peated entries  made  by  defendant's  cattle  through  an  unrepaired  break  in 
plaintiff's  fence  should  be  limited  to  such  entries  as  occur  before  plaintiff  has 
had  reasonable  time  to  repair  such  break.      Watkins  v.  Rist  (Yt.)  31  Atl.  413. 

8T  Laker  v.  Damon,  17  Pick.  284.  See,  also,  Thompson  v.  Shattuck,  2  Mete, 
(Mass.)  G15. 

8  8  Sutherland  v.  Wyer,  G7  Me.  64;  Sherman  Center  Town  Co.  v.  Leonard, 
40  Kan.  3.34,  26  Pac.  717. 


§    29)  AVOIDABLE    CONSEQUENCES.  65 

mate  cause  of  such  injuries.*^  Courts  frequently  speak  of  tlie  duty 
to  make  the  damages  as  light  as  possible,  but  it  is  a  duty  only  in 
the  sense  that  compensation  is  denied  for  losses  which  might  have 
been  avoided.  In  Miller  v.  Mariner's  Church  ^°  the  doctrine  was 
well  explained.  Weston,  J.,  said:  'T[f  the  party  injured  has  it  iu 
his  power  to  take  measures  by  which  his  loss  ma^*  be  less  aggra- 
vated, this  will  be  expected  of  him.  Thus,  in  a  contract  of  assur- 
ance, where  the  assured  may  be  entitled  to  recover  for  a  total  loss, 
he,  or  the  master  employed  by  him,  becomes  the  agent  of  the  assurer 
to  save  and  turn  to  the  best  account  such  of  the  property  assured 
as  can  be  preserved.  The  purchaser  of  perishable  goods  at  auction 
fails  to  complete  his  contract.  What  shall  be  done?  Shall  the 
auctioneer  leave  the  goods  to  perish,  and  throw  the  whole  loss  on 
the  purchaser?  That  would  be  to  aggravate  it  unreasonably  and 
unnecessarily.  It  is  his  duty  to  sell  them  a  second  time,  and,  if  they 
bring  less,  he  may  recover  the  difference,  with  commissions  and 
other  expenses  of  resale,  from  the  first  purchaser.  If  the  party  en- 
titled to  the  benefit  of  a  contract  can  protect  himself  from  a  loss 
arising  from  a  breach,  at  a  trifling  expense  or  with  reasonable  ex- 
ertions, he  fails  in  social  duty  if  he  omits  to  do  so,  regardless  of  the 
increased  amount  of  damages  for  which  he  may  intend  to  hold  the 
other  contracting  party  liable.  'Qui  non  prohibet,  cum  prohibere 
possit,  jubet.'  And  he  who  has  it  in  his  power  to  prevent  an  injury 
to  his  neighbor,  and  does  not  exercise  it,  is  often  in  a  moral,  if  not 
m  a  legal,  point  of  view,  accountable  for  it.  The  law  will  not  per- 
mit him  to  throw  a  loss  resulting  from  a  damage  to  himself  upon 
another,  arising  from  causes  for  which  the  latter  may  be  responsible, 
which  the  party  sustaining  the  damage  might  by  common  prudence 
have  prevented.  For  example,  a  party  contracts  for  a  quantity  of 
bricks  to  build  a  house,  to  be  delivered  at  a  given  time,  and  engages 
masons  and  carpenters  to  go  on  with  the  work.  The  bricks  are  not 
delivered.  If  other  bricks  of  an  equal  quality,  and  for  the  stipulated 
price,  can  be  at  once  purchased  on  the  spot,  it  would  be  unreason- 
able, by  neglecting  to  make  the  purchase,  to  claim  and  receive  of 
the  delinquent  party  damages  for  the  workmen  and  the  amount  of 
rent  which  might  be  obtained  for  the  house  if  it  Imd  been  luiill. 

ec  Loker  v.  Damon,  17  Pick.  284. 

•  0  7  Mf.  'A.     Soe,  also,  Davis  v.  Fisli,  1  CJ.  (Jrcone  (Iowa)  lOU. 

I.A-VV  DANf.  — 5 


66  COMPENSATORY    DAMAGES.  (Ch.   3 

Tho  party  who  is  not  chargeable  with  a  viohition  of  his  contract 
shoukl  do  the  best  he  can  in  such  cases;  and,  for  any  unavoidable 
loss  occasioned  by  the  failure  of  the  other,  he  is  justly  entitled  to 
a  liberal  and  complete  indemnity."  Compensation  for  the  reason- 
able expense  and  labor  of  an  attempt  to  reduce  the  damage  is 
chargeable  to  the  person  liable  for  the  wrong,  even  though  the  at- 
tempt prove  abortive,  for  the  reason  that,  if  the  efforts  are  success- 
ful, he  will  have  the  benefit  of  them,  and  therefore,  even  if  unsuc- 
cessful, it  is  but  just  that  he  should  bear  the  expense  of  the 
attempt.^ ^  But  the  expense  must  be  reasonable.  Plaintiff  need 
not  incur  unreasonable  expenses,  and,  if  he  does,  they  cannot  be  re- 
covered.'•^ 
Tlie  Rule  Applied — Illustrations. 

For  breach  of  a  contract  of  sale,  the  vendee  can  recover  only  what 
it  would  cost  with  reasonable  diligence  to  procure  the  goods  from 
The  market  or  elsewhere.^^  Where  goods  are  tendered  after  the 
time  fixed  for  delivery,  compensation  for  damages  subsequently  ac- 

91  Benson  v.  Maiden  &  Meh-ose  Gaslight  Co.,  G  Allen,  149;  Bennett  v.  Lock- 
wood,  20  Wend.  223.  Where  a  horse  is  injured  and  rendered  entirely  worth- 
less, money  expended  in  good  faith  and  reasonable  diligence,  in  an  effort  to 
effect  a  cure,  may  be  recovered,  in  addition  to  the  value  of  the  horse.  Ellis 
v.  Hilton.  78  Mich.  150,  43  N.  W.  1048.  See,  also,  Eastman  v.  Sanborn.  3  Allen 
(Mass.)  594.  Where  plaintift  incurs  a  new  injury  while  reasonably  endeavor- 
ing to  avoid  the  consequences  of  defendant's  wrong,  defendant  is  liable  for 
such  new  injuries.  .Jones  v.  Boyce,  1  Starkie,  493.  Where  a  passenger  on  a 
stagecoach  is  placed  in  sudden  danger,  and,  in  the  exercise  of  reasonable  pru- 
dence, leaps  therefrom,  he  may  recover  for  injuries  caused  by  the  leap,  al- 
though, had  he  retained  his  seat,  he  would  have  escaped  uninjured.  lugalls  v. 
3ills,  9  Mete.  (Mass.)  1.  See,  also,  Wilson  v.  Newport  Dock  Co.,  4  Hurl.  & 
•€.  232. 

92  A  passenger  delayed  through  the  fault  of  a  railway  company  cannot  re- 
cover the  expense  of  a  special  train  hired  by  him  to  reach  his  destination, 
where  there  was  no  occasion  for  his  presence  there  at  any  particular  time.  Lc 
Blanche  v.  Railroad  Co.,  1  C.  P.  Div.  286.  Where  the  expense  of  repairing  :i 
damaged  machine  would  have  equaled  the  price  of  a  new  machine,  the  rule 
has  no  application.  Thomas,  B.  &  W.  Manufg  Co.  v.  Wabash,  St.  I>.  &  P.  Ry. 
Co.,  62  Wis.  642,  22  N.  W.  827. 

93  Parsons  v.  Sutton,  66  N.  Y.  92;  McHose  v.  Fulmer,  73  Pa.  St.  365;  Gains- 
ford  v.  Carroll,  2  Barn.  &  C.  624;  Barrow  v.  Arnaud.  8  Q.  B.  604;  Hinde  v. 
Liddell,  L.  R.  10  Q.  B.  265;  Benton  t.  Fay,  64  111.  417;  Beymer  v.  McBride,  37 
Iowa,  114;   Grand  Tower  Co.  v.  Phillips,  23  Wall.  471. 


§    29)  AVOIDABLE    CONSEQUENCES.  67 

cruing  cannot  be  recovered.  One  cannot  refuse  to  take  goods,  and 
then  claim  damages  because  he  could  not  get  them.^*  A  vendee 
need  not  accept  goods  tendered  at  a  higher  price  than  the  contract 
price,  nor  less  than  the  subsequent  market  value,  as  such  acceptance 
would  constitute  an  abandonment  of  the  original  contract. ^^  The 
rule  applies  in  an  action  against  a  carrier  for  nondelivery,  where 
the  consignee  can  protect  himself  against  loss  by  a  purchase  in  the 
market.®® 

Where  an  employ^  is  wrongfully  discharged  before  the  expiration 
of  the  term  of  service,  he  must  seek  other  employment;  and  the 
measure  of  damages  is  the  difference  between  what  he  might  have 
earned  and  what  he  should  have  received  under  his  contract.®^ 
Reasonable  diligence  in  seeking  other  employment  does  not  require 
one  to  accept  employment  of  an  entirely  different  or  inferior  sort, 
ov  to  abandon  one's  home  and  place  of  residence.®^  <^  The  duty  to 
seek  other  employment  is  confined  strictly  to  contracts  for  the  plain- 
tiff's time.®®  It  does  not  apph',  for  instance,  to  a  contract  to  build 
a  house.  The  fact  that  the  contractor  has  contracts  to  build  a  dozen 
other  houses  will  not  mitigate  or  lessen  the  damages  recoverable  for 
a  breach.^ °°  )  An  employ^  must  accept  re-employment  tendered  by 
the  employer  who  has  discharged  liim.^°^  But  he  need  not  accept 
re-employment  at  a  less  rate,  as  that  would  be  a  modification  of  the 
original  contract,  and  a  bar  to  the  recovery  of  any  damages." - 
Where,  after  notice  to  an  employ^  not  to  go  on  with  the  work,  the 

9i  Parsons  v.  Sutton,  G6  N.  Y.  92. 

9  5  Havemeyer  v.  Cunningham,  35  Barb.  515. 

8  6  Scott  V.  Boston  &  N.  O.  S.  S.  Co.,  lOG  Mass.  4G8. 

9  7  Walworth  v.  Pool,  9  Ark.  394;  McDaniel  v.  Parks,  19  Ark.  G71;  Suther- 
land V.  Wj-er,  67  Me.  04;  Hoyt  v.  Wildtire,  3  Johns.  518;  Shannon  v.  Corn- 
stock,  21  Wend.  457;  Howard  v.  Daly,  Gl  N.  Y.  3G2;  ilendrlckson  v.  Anderson. 
.5  Jones  (N.  C.)  240;  King  v.  Stelren,  44  Pa.  St.  99;  Gordon  v.  Brewster,  7 
Wis.  3.">. 

88  Williams  v.  Chicago  Coal  Co.,  GO  111.  149  Costigau  v.  Itailroad  Co.,  2 
Denio,  009;  Howard  v.  Daly,  01  N.  Y.  302;  Fuchs  v.  Kooruer,  107  N.  Y.  529, 
14  N,  E.  445;  Leatherborry  v.  Odell,  7  Fed.  041;  Sheffield  v.  Page,  1  Spr.  285, 
■"ed.  Cas.  No.  12,743.     But  see  Huntington  v.  Railroad  Co.,  33  How.  Prac.  410. 

99  Wolf  V.  Studf'baker,  0."  Pa.  St.  459. 

100  Sodg.  El.  Dam.  p.  77. 

101  Higolow  V.  American  Forcite  Powder  Manuf'g  Co.,  39  Ilnu,  ."99. 

102  Whitmarsh  v.  Littlefield,  40  Hun,  418. 


/ 


GS  COMPENSATORY    DAMAGKS.  (Ch,   3 

latter,  nevertheless,  completes  it,  ho  cannot  recover  the  increased 
damages  so  caused.^  °^ 

Rule  of  Contributory  Negligence  Distinguished. 

The  rule  of  avoidable  consequences  must  not  be  confounded  with 
that  of  contributory  negligence,  though  their  results  are  somewhat 
similar.  Contributory  negligence  is  a  complete  bar  to  the  mainte- 
nance of  the  action.  It  defeats  the  right  to  recover  any  damages 
whatever.  On  the  other  hand,  the  rule  of  avoidable  consequences- 
presupposes  a  valid  cause  of  action.  It  has  no  application  until  a 
right  to  recover  some  damages  at  all  events  has  arisen,  and  then 
it  operates  merely  to  reduce  the  amount  of  recovery.  It  cannot  en- 
tirely defeat  the  action.  Though  plaintiff  might  have  avoided  the 
entire  loss,  yet,  if  an  absolute  right  was  invaded,  he  is  entitled  to 
nominal  damages.^*^*  In  cases  where  damages  are  the  gist  of  the 
action,  failure  to  avoid  the  damage,  if  it  could  be  done  by  reason- 
able effort,  would  probably  be  regarded  as  contributory  negligence,^ 
and  a  bar  to  the  action.  In  actions  for  breach  of  contract,  damages 
are  never  of  the  gist;  and  therefore  a  plea  that  plaintiff  might  have 
avoided  all  damage  is  no  bar  to  the  action. ^°'  Nominal  damages, 
at  least,  are  always  recoverable  for  a  breach  of  contract;  and  the 
doctrine  of  contributory  negligence  has  no  application. 

Limitations  of  Rule. 

The  rule  of  avoidable  consequences  requires  the  injured  person  to 
exercise  ordinary  care  to  avoid  injurious  consequences.^"®  He  need 
not  exercise  more  care,^°^  but  he  cannot  recover  if  he  exercises 
less.^°*     What  is  reasonable  care  is  usually  a  question  of  fact  to- 

10  3  Clark  v.  Marsiglia,  1  Deuio,  317.  lo*  See  ante,  24. 

losArmfield  v.  Nash,  31  Miss.  361. 

IOC  Parker  v.  Meadows,  SG  Teun.  181,  6  S;  W.  41).  A  party  need  not,  in  order 
to  lessen  the  injury  resulting  from  a  breach  of  contract,  employ  some  one  else 
to  do  what  the  contract  bound  the  other  party  to  do.  Gulf.,  C.  &  S.  F.  Ry. 
Co.  V.  Hodge  (Tex.  Civ.  App.)  .30  S.  W.  829. 

107  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Falvey,  104  Ind.  400.  425,  3  N.  E.  380, 
and  4  N.  E.  908;  Leonard  v.  Telegraph  Co.,  41  N.  Y.  544.  Where  a  married 
woman  became  pregnant  after  a  personal  injury,  which  was  thereby  aggra- 
vated, if  she  had  no  reason  to  anticipate  such  a  consequence,  she  may  recover 
therefor.     Salladay  v.  Dodgeville,  85  Wis.  318,  55  X.  W.  GOG. 

108  Simpson  v.  City  of  Keokuk,  34  Iowa,  5GS;    AUender  v.  Railroad  Co.,  37 


§    29)  AVOIDABLE    CONSEQUENCES.  G9 

be  determined  in  view  of  all  the  circumstances  of  the  case.^°^  No 
duty  to  avoid  consequences  can  arise,  of  course,  so  long  as  the  plain- 
tiff is  ignorant  that  a  wrong  has  been  committed.^ ^°  Nor  does  the 
rule  require  impossibilities.  Where,  for  example,  plaintiffs  have 
invested  all  their  money  in  the  purchase  of  certain  corn,  they  can- 
not be  required  to  buy  other  corn  in  the  market  in  order  to  avoid  a 
loss  caused  by  the  nondelivery  of  the  corn  purchased.^ ^^  The  rule 
does  not  require  plaintiff  to  himself  commit  a  wrong  in  order  to 
avoid  the  consequences  of  defendant's  wrong,^^^  If  he  must  vio- 
late a  contract  ^^^  or  commit  a  trespass  ^^*  to  aA-oid  such  conse- 
quences, the  rule  does  not  apply.  Neither  does  the  rule  require 
plaintiff  to  anticipate  a  wrong.  He  is  entitled  to  rely  upon  the  pre- 
sumption that  every  one  will  do  his  duty,  and  commit  no  wrong. 
The  rule  only  applies  where  a  wrong  or  breach  of  contract  has  been 
actually  committed.^ ^^      For  example,  a  passenger  on  a  railroad 

Iowa,  2(yi.  But  see  Green  v.  Mann,  11  111.  613;  Chase  v.  Railroad  Co.,  24 
Barb.  273. 

109  As  to  wliat  constitutes  reasonable  care  under  the  circumstances,  see,  for 
example,  Bradley  v.  Denton,  3  Wis.  557;  Poposkey  v.  Muukwitz,  6S  Wis.  322, 
32  N.  W.  35;    Smith  v.  Railroad  Co.,  38  Iowa,  51S. 

iioBagley  v.  Cleveland  Rolling-Mill  Co.,  22  Blatchf.  342,  21  Fed.  159;  Gulf. 
C.  &  S.  F.  Ry.  Co.  V.  McMannewitz,  70  Tex.  73,  8  S.  W.  G6.  "Suppose  a  man 
should  enter  his  neighbor's  field  unlawfully,  and  leave  the  gate  open;  if,  before 
the  owner  knows  it,  cattle  enter  and  destroy  the  crop,  the  trespasser  is  re- 
sponsible. But  if  the  owner  sees  the  gate  open,  and  passes  it  frequently  and 
willfully  and  obstinately,  or,  through  gross  negligence,  leaves  it  open  all  sum- 
mer, and  cattle  get  in,  it  is  his  own  folly."     Loker  v.  Damon,  17  Pick.  284. 

111  "It  would  be  very  unreasonable  to  require  one  who  has  bought  and  paid 
for  an  article  to  have  the  money  in  his  pocket  with  which  to  buy  a  second  in 
case  of  nondelivery  of  the  first."  Illinois  Cent.  R.  Co.  v.  Cobb,  G4  111.  128,  142. 
See,  also.  Startup  v.  Cortazzi,  2  Cromp.  M.  &  K.  165;  Middlokauff  v.  Smith, 
1  Md.  320;   Wilcox  v.  Campbell,  106  X.  Y.  325,  12  N.  E.  823;    Id.,  35  Hun.  254. 

112  Kankakee  &  S.  R.  Co.  v.  Horan,  23  111.  App.  259. 

113  Leonard  v.  Telegraph  Co.,  41  N.  Y.  544,  566. 

114  Chicago,  R.  I.  &  P.  R.  Co.  v.  Carey,  90  111.  514;  Wolf  v.  St.  Louis  Inde- 
pendent Water  Co.,  15  Cal.  319;   Simpson  v.  City  of  Keokuk,  34  Iowa,  568. 

115  Beers  v.  Board  of  Health,  35  La.  Ann.  1132;  Roynolds  v.  Riv(M-  Co..  43  Me. 
513;  Plummer  v.  Penobscot  Lumbering  Ass'n,  67  Me.  367.  A  landowner  need 
not  avoid  improving  his  property  merely  because  he  has  notice  of  condonniatioa 
proceedings.     Driver  v.  Western  Union  R.  Co.,  32  Wis.  569. 


7U  COMPENSATORY    DAMAGKS.  (Ch.    3 

trnin.  who  is  witliont  fault,  cannot  be  required  to  pay  his  fare  a 
second  time,  in  order  to  avoid  ejection. ^^* 


THE  REQUIRED  CERTAINTY  OP  DAMAGES. 

30.  Losses  must  be  certain  in  amount,  and  certain  in  re- 
spect to  the  cause  from  \i^hich  they  proceed,  or 
damages  therefor  cannot  be  recovered.  The  bur- 
den of  proving   both  these  facts  is  on  the  plaintiff. 

In  an  action  for  damages,  the  plaintiff  must  prove,  as  a  part  of  his 
case,  both  the  amount  and  the  cause  of  his  loss.  Absolute  cer- 
tainty is  not  required,  but  both  the  cause  and  the  probable  amount 
of  the  loss  must  be  shown  with  reasonable  certaint}-.^^^  Substan- 
tial damages  may  be  recovered  though  plaintiff  can  only  state  his 
loss  proximately;  but,  where  the  evidence  is  so  vague  and  uncer- 
tain that  it  is  impossible  to  say  that  any  definite  amount  of  damage 
has  been  suffered,  no  damages  can  be  recovered.^ ^^  The  cause  of 
a  loss  already  inflicted  is  shown  with  sufficient  certainty  when  the 
loss  is  shown  to  be  its  natural  and  probable  result.^ ^^  Where  the 
loss  is  pecuniary,  and  is  present  and  actual,  and  can  be  measured, 
evidence  must  be  given  of  its  extent,  or  only  nominal  damages  can 
be  recovered.^-"  Pain,  suffering,  injury  to  the  feelings,  and  the  like, 
cannot  be  measured  by  arithmetical  rule;  and,  of  necessity,  the  com- 
pensation for  such  injuries  is  left  to  the  sound  discretion  of  a 
jury.^-^  Where  compensation  for  actual  pecuniary  injury^Ts  sought, 
the  jury  have  no  discretion.  The  amount  of  damage  must  be 
proved,  and  they  can  award  none  other.^^^      Where  the  loss  is  al- 

116  Yorton  v.  Railway  Co.,  62  Wis.  3G7,  21  X.  W.  .SIG,  and  23  N.  W.  401. 

117  East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea,  397;  Wolcott  v.  Mount, 
36  N.  J.  Law,  262,  271;   Allison  v.  Chandler,  11  Mich.  .j42,  555. 

118  Satchwell  v.  Williams,  40  Conn.  371. 

118  Siith.  Dam.  §  53;  Griffin  v.  Colver,  16  N.  Y.  494. 

120  See  ante,  24;  Sedg.  Dam.  §  171;  Leeds  v.  Metropolitan  Gaslight  Co., 
yO  N.  Y.  26;   Duke  v.  Missouri  Pac.  RJ^  Co.,  9'J  Mo.  347,  351,  12  S.  W.  636. 

121  See  post,  p.  220. 

122  Damages  for  future  pecuniary  loss  from  a  personal  injury  cannot  be 
awarded  where  there  is  no  evidence  of  plaintiffs  condition  in  life,  or  earning 
power.    Staal  v.  Grand  St.  &  N.  R.  Co.,  107  N.  Y.  627,  13  N.  E.  624. 


§    30)  THE    REQUIRED    CERTAINTY    OF    DAMAGES.  71 

ready  in:flicted,  and  is  pecuniary,  its  amount  may  usually  be  proved 
without  any  uncertainty.  A  difficulty  arises,  however,  where  com- 
pensation is  claimed  for  prospective  losses  in  the  nature  of  gains 
prevented;  for  it  is  impossible  to  prove  absolutely  that  what  might 
have  been  would  have  been.  But  absolute  certainty  is  not  re- 
quired. Compensation  for  prospective  losses  may  be  recovered 
where  they  are  such  as,  in  the  ordinary  course  of  nature,  are  rea- 
sonably certain  to  ensue.^^^      Reasonable  certainty  means  reasou- 

123  Strolim  V.  New  York,  L.  E.  &  W.  R.  Co.,  96  N.  Y.  305.  Compensatiou  tor 
loss  of  future  support  may  be  recovered  in  au  action  for  death  by  wrongful 
jict.  Lawson  v.  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.,  64  Wis.  447,  24  N.  W.  018; 
Eames  v.  Town  of  Brattleboro,  54  Vt.  471;  Houghkirk  v.  Delaware  &  11. 
Canal  Co.,  92  N.  Y.  219;  Hoppe  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  61  Wis.  357, 
1:1  N.  W.  227;  Johnson  v.  Chicago  &  N.  W.  Ry.  Co.,  &4  Wis.  425,  25  N.  W.  223. 
(Jompensatiou  may  be  recovered  for  loss  of  earnings  or  income  caused  by  per- 
sonal injuries.  Moore's  Adm'r  v.  Minerva,  17  Tex.  20;  Wade  v.  Leroy,  20 
How.  34;  Pierce  v.  Millay,  44  111.  189;  Chicago  &  A.  R.  Co.  v.  Wilson,  03  111. 
167;  City  of  Chicago  v.  Jones,  66  111.  349;  City  of  Chicago  v.  Langlass,  Id.  361; 
City  of  Chicago  v.  Elzeman,  71  111.  131;  Village  of  Sheridan  v.  Hibbard,  119 
111.  307.  9  N.  E.  901;  City  of  Joliet  v.  Conway,  119  111.  4S9,  10  N.  E.  223;  Mc- 
Kiuley  v.  Chicago  &  N.  W.  R.  Co.,  44  lo\Ya,  314;  Stafford  v.  City  of  Oska- 
loosa,  64  Iowa,  251,  20  N.  W.  174;  Jordan  v.  Middlesex  R.  Co.,  138  Mass.  425; 
Stephens  v.  Hannibal  &  S.  J.  R.  Co.,  96  Mo.  207,  9  S.  W.  589;  Sheehan  v.  Ed- 
gar, 58  N.  Y.  631;  Pennsylvania  &  O.  Canal  Co.  v,  Graham,  63  Pa.  St.  290: 
Scott  Tp.  V.  Montgomery,  95  Pa.  St.  444;  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Frantz.  127  Pa.  St.  297,  IS  Atl.  22;  Houston  &.  T.  C.  Ry.  Co.  v.  IJoehm,  57  Tex. 
152;    Goodno  v.  City  of  Oshkosh,  28  Wis.  300. 

The  labor  of  professional  men  has  no  fixed  market  value.  What  the  in- 
jured person  has  earned  in  the  past  is  evidence,  though  not  conclusive,  of 
what  he  might  have  earned.  Pennsylvania  R.  Co.  v.  Dale,  76  Pa.  St.  47; 
Welch  V  Ware,  32  Mich.  77;  New  Jersey  Exp.  Co.  v.  Nichols,  33  N.  J.  Law, 
434;  Parshall  v.  Minneapolis  &  St.  L.  Ry.  Co.,  35  Fed.  649;  Nash  v.  Sbarpo, 
19  Hun,  365;  Walker  v.  Erie  Ry.  Co.,  63  Barb.  260;  Luck  v.  City  of  Ripon.  52 
Wis.  196,  8  N.  AV.  815;  Baker  v.  Manliattan  Ry.  Co.,  54  N.  Y.  Super.  Ct.  394; 
Phillips  V.  London  &  S.  W.  R.  Co.,  5  C.  P.  Div.  280;  City  of  Indianapolis  v. 
Gaston,  58  Ind.  224;  City  of  Logausport  v.  Justice,  74  Ind.  378;  Holmes  v. 
Halde,  74  Me.  28;  Metcalf  v.  Baker,  57  N.  Y.  662;  McNaraara  v.  Village  of 
Clintonville,  02  Wis.  207,  22  N.  W.  472;  Collins  v.  Dodge,  37  .Miim.  503,  35  N. 
W.  308;  City  of  Bloomington  v.  Chamberlain,  101  111.  20S;  Maslertou  v.  Vil- 
lage of  Mt.  Vernon,  58  N.  Y.  391.  It  is  immaterial  that  plaintirf  is  not  legally 
entitled  to  such  earnings,  if  he  was  in  the  customary  receipt  of  them.  Phil- 
lips V.  London  &  S.  W.  R.  Co.,  5  C.  P.  DIv.  280;  Holmes  v.  llahh'.  71  Me.  2S; 
Luck  V.   City  of  Riiton,  52  Wis.  190.  8  N    W.  815;    McNamara   v.   Viliag.-   .if 


72  COMPENSATOPvY    DAMAGES.  (Ch.    3 

able  probability.^-^  Where  the  losses  claimed  are  contiugent, 
speculative,  or  merely  possible,  they  cannot  be  compensated.'-" 

SAME— PROFITS    OR    GAINS    PREVENTED. 

31.  Compensation  may  be  recovered  for  profits  lost  when 
the  loss  is  a  proximate  and  certain  result  of  the 
tort  or  breach  of  contract. 

It  was  at  one  time  laid  down  as  a  general  rule  that  damages  could 
not  be  recovered  for  the  loss  of  profits.^ -°  It  was  thought  that 
profits  were  in  their  very  nature  too  uncertain  to  be  considered.^^^ 
It  is  well  established  now,  however,  that  damages  may  be  recov- 
ered for  such  losses  if  they  are  proximate,  and  certain.  Selden,  J., 
said:  ^-^      "It  is  a  well-established  rule  of  the  common  law  that  dam- 

riintonville,  02  Wis.  207,  22  N.  W.  472.  But  loss  of  earnings  in  an  illegal  em- 
ployment cannot  be  compensated.  Jacques  v.  Bridgepcri  Horse  R.  Co.,41  Conn. 
Ul;  Kauffman  v.  Babcock,  67  Tex.  241,  2  S.  W.  878.  Where  one  is  learning  a 
profession,  compensation  may  be  recovered  on  the  basis  of  the  probable  skill 
lie  would  have  acquired.  Howard  Oil  Co.  v.  Davis,  7G  Tex.  G30,  13  S.  W.  GG5. 
Where  one  is  not  engaged  in  business  at  the  time  of  an  injury,  he  may  recover 
compensation  for  being  prevented  from  engaging  in  bushiess  in  the  future. 
Fisher  v.  Jansen,  128  111.  549,  21  N.  E.  598.  Prospective  damages  for  defama- 
tion cannot  be  recovered,  as  the  verdict  heals  the  reputation.  Halstead  v. 
Nelson,  24  Hun,  395;   Bradley  v.  Cramer.  66  Wis.  297,  28  N.  W.  372. 

124  Griswold  v.  New  York  Cent.  &  H.  R.  Co.,  115  N.  Y.  61,  21  N.  E.  726; 
Feeney  v.  Long  Island  R.  Co.,  116  N.  Y.  375,  22  N.  E.  402. 

125  De  Costa  v.  Massachusetts  Flat  Water  .c  Mining  Co..  17  Cal.  613;  Fry 
v.  Dubuque  &  S.  W.  Ry.  Co.,  45  Iowa,  416;  Lincoln  v.  Saratoga  &  S.  R.  Co., 
23  Wend.  425;  Staal  v.  Grand  St.  &  N.  R.  Co.,  107  N.  Y.  625,  13  N.  E.  624; 
Chicago  City  Ry.  Co.  v.  Henry,  62  111.  142. 

126  Mr.  Sedgwick  calls  attention  to  the  confusion  arising  from  the  loose  use 
of  the  word  "profits."  As  used  by  the  courts  in  this  connection,  it  may  mean 
either  the  wages  a  man  could  earn,  the  rent  or  value  of  use  oi  property,  the 
advantages  of  a  contract,  or  the  true  profits  of  a  business.  Care  must  be 
taken  to  ascertain  in  which  sense  it  is  used  in  particular  cases.  Sedg.  Dam. 
250. 

127  See  The  Lively,  1  Gall.  315,  325.  Fed.  Cas.  No.  8.403;  The  Anna  Maria.  2 
Wheat.  327;  The  Amiable  Nancy.  3  Wheat.  546;  La  Amista.i  de  Rues.  5  Wheat. 
.385;  Boyd  v.  Brown,  17  Pick.  453;  Smith  v.  Condry,  1  How.  (U.  S.)  28;  Minor 
V.  The  Picayune  No.  2,  13  La.  Ann.  564. 

128  Griffin  v.  Colver,  16  N.  Y.  489,  491.     See,  also,   Brigliam  v.  Carlisl.',  78 


§31)  PROFITS    OR    GAINS    PREVENTED.  73 

ages  recoverable  for  a  breach  of  contract  must  be  shown  with  cer 
tainty,  and  not  left  to  speculation  or  conjecture;  and  it  is  under 
this  rule  that  profits  are  excluded  from  the  estimate  of  damages  in 
such  cases,  and  not  because  there  is  anything  in  their  nature  which 
should  per  se  prevent  their  allowance.  Profits  which  would  cer- 
tainly have  been  realized  but  for  the  defendant's  fault  are  recover- 
able; those  which  are  speculative  and  contingent  are  not.  The 
broad  general  rule  in  such  cases  is  that  the  party  injured  is  entitled 
to  recover  all  his  damages,  including  gains  prevented  as  well  as 
losses  sustained;  and  this  rule  is  subject  to  but  two  conditions: 
The  damages  must  be  such  as  may  fairly  be  supposed  to  have  en- 
tered into  the  contemplation  of  the  parties  when  they  made  the 
contract, — that  is,  must  be  such  as  might  naturally  be  expected  to 
follow  its  violation ;  and  they  must  be  certain,  both  in  their  nature 
and  in  respect  to  the  cause  from  which  they  proceed."  Thus,  an- 
ticipated profits  from  the  use  of  money  cannot  be  recovered  in  an 
action  for  its  nonpayment,  because,  non  constat,  instead  of  realizing 
any  profits,  a  loss  might  have  been  sustained,  owing  to  unforeseen 
circumstances,  as  often  happens  in  the  business  world.  In  such 
cases,  the  average  value  of  the  use  of  money — i.  e.  interest — is  the 
only  loss  that  can  be  certainly  proved,  and  is  therefore  the  measure 
of  damages.^ ^^ 
The  Rule  Applied — Illustrations. 

Where  plaintiff  is  engaged  in  a  mercantile  business,  compensa- 
tion for  a  personal  injury  is  limited  to  the  value  of  his  loss  of  timr. 
Loss  of  profits  of  the  business  through  the  injury  to  the  good  will 

Ala.  243,  249;  Masterton  v.  Mayor,  etc.,  of  Brooklyn,  7  Hill.  61;  Sbermau 
Center  Town  Co.  v.  Leonard,  4G  Kan.  354,  20  Pac.  717.  Expected  specific  prof- 
its cannot  be  recovered.  Brown  v.  Smith,  12  Cush.  3UG;  Aber  v.  Bratton, 
CO  Mich.  357,  27  N.  W.  564;  Callaway  Min.  &  Manuf'g  Co.  v.  Clark,  32  Mo. 
305;  Marlow  v.  Lajeunesse,  18  L.  C.  Jur.  188.  Anticipated  profits  from  a 
competition  or  speculation  are  too  uncertain  to  bo  coinpensatcd.  Watson  v. 
Arabergate,  N.  &  B.  R.  Co.,  15  Jur.  448;  Western  Union  Tel.  Co.  v.  Crall,  30 
Kan.  580, 18  Pac.  719;  Mizner  v.  Frazier,  40  Mich.  592;  W.  U.  Tel.  Co.  v.  Hall, 
124  U.  S.  444,  8  Sup.  Ct.  577.  But  see  Adams  Exp.  Co.  v.  E^cbert,  36  Pa.  St. 
360.  Damages  assessed  on  the  basis  of  an  approximale  cstiiiiate  of  the  ma- 
turity of  building  association  stock  are  not  sp(>culative.  .MMiitcr  v.  Tniesdalc, 
r>7  Mo.  App.  435. 

120  Greene  v.  Cod(l;ird,  9  Mete.  (Mnss.)  212,  2:52.    See  post,  1  ft,  "Interest." 


74  COMPENSATORY    DAMAGES.  (Ch.   5 

is  not  a  natural  consequence.^'"  The  usual  and  ordinary  profits 
of  an  established  business  are  reasonably  certain,  and  may  be  recov- 
ered in  an  action  for  interruption  of  the  business,  in  the  absence 
of  anythinfj;  showing  that  they  would  not  have  been  realized.^ ^* 
Some  businesses  are  of  so  uncertain  a  natuie  that  their  profits 
never  become  established,  such  as  fishing.^^^  Plaintiff  cannot  re- 
cover anticipated  profits  of  a  new  business,  in  which  he  was  wrong- 
fully prevented  from  embarking.^^'  Only  the  amount  paid  for  the 
publication  of  an  advertisement  in  a  newspaper  can  be  recovered  for 
its  negligent  omission.^^*  Damages  for  the  loss  of  use  of  land  or 
business  premises  are  the  rental  value.^^'^  But,  where  such  loss 
interrupts  an  established  business,  loss  of  profits  may  also  be  com- 
pensated.^''  The  measure  of  damages  for  the  nondelivery  of  or 
injury  to  machinery  is  the  value  of  its  use;  ^'^    but  expected  profits 

lao  Marks  v.  Long  Island  R.  Co.,  14  Dalj,  61;  Bierbach  v.  Rubber  Co.,  54 
Wis.  20S,  11  N.  W.  514;   Masterton  v.  Village  of  Mt.  Vernon,  58  N.  Y.  391. 

131  Allison  V.  Chandler,  11  Mich.  542;  Peltz  v.  Kieliele,  G2  Mo.  171;  Gunter 
V.  Astor,  4  Moore,  12;  Wilier  v.  Navigation  Co.,  15  Or.  153,  13  Pac.  768^ 
French  v.  Lumber  Co.,  145  Mass.  261,  14  N.  E.  113. 

132  Wright  V.  Mulvaney,  78  Wis.  89,  46  N.  W.  1045;  Willis  v.  Branch,  94 
X.  C.  142;  Hunt  v.  Improvement  Co.,  3  E.  D.  Smith,  144;  Jones  v.  Call,  96 
X.  C.  337,  2  S.  E.  647. 

133  Red  v.  City  Council  of  Augusta,  25  Ga.  386;  Kenny  v.  Collier,  79  Ga, 
743,  8  S.  E.  58;  Greene  v.  W^illiams,  45  in.  206;  Hair  v.  Barnes,  26  111.  App. 
580;  Morey  v.  Gaslight  Co.,  38  N.  Y.  Super.  Ct.  185;  B'ngham  v.  W^alla  Walla, 
3  Wash.  T.  68,  13  Pac.  408;    Aber  v.  Bratton,  60  Mich.  357,  27  N.  W.  564. 

134  Eisenlohr  v.  Swain,  35  Pa.  107. 

135  City  of  Chicago  v.  Huenerbein,  85  111.  594;  Newark  Coal  Co.  v.  Upson, 
40  Ohio  St.  17;  Snodgrass  v.  Reynolds,  79  Ala.  452;  Rose  v.  Wynu,  42  Ark. 
257;  Robrecht  v.  Marling's  Adm'r,  29  W.  Va.  765,  2  S.  E.  827;  Hexter  v, 
Knox.  63  N.  Y.  561;  Townsend  v.  Nickerson  W^harf  Co.,  117  Mass.  501;  Giles 
V.  O'Toole,  4  Barb.  261;  Fonda vila  v.  Jourgensen,  52  N.  Y.  Super.  Ct.  403; 
Skinker  v.  Kidder,  123  Ind.  528,  24  N.  E.  341;  Dodds  v.  Hakes,  114  N.  Y. 
260,  21  N.  E.  398;    City  of  Cincinnati  v.  Evans,  5  Ohio  St.  594. 

136  See  supra,  and  also  Ward  v.  Smith,  11  Price,  19;  Hexter  v.  Knox,  63^ 
N.  Y.  561;  Poposkey  v.  Munkwitz,  68  Wis.  322,  32  N.  W.  35;  Shaw  v.  Hoff- 
man, 25  Mich.  103;  Seyfert  v.  Bean,  S3  Pa.  St.  450;  Llewellyn  v.  Rutherford, 
L.  R.  10  C.  P.  456;  Sewall's  Falls  Bridge  v.  Fisk,  23  N.  H.  171;  Schile  v. 
Brokhahus.  SO  N.  Y.  614;  Gibson  v.  Fischer,  68  Iowa,  29,  25  N.  W.  914; 
Woodin  V.  W'entworth,  57  Mich.  278,  23  N.  W.  813;    Pollitt  v.  Long,  58  Barb.  20. 

i37Blanchard  v.  Ely,  21  Wend.  342;  Griffin  v.  Colver.  16  N.  Y.  489,  496. 
See.  also,  Satchwell  v.  Williams.  40  Conn.  371;    Strawn  v.   Cogswell.  2S  TIL 


§    31)  PROFITS    OR    GAINS    PREVENTED.  75 

from  its  use  are  too  uncertain  to  be  recovered.^ ^^  Loss  of  profits 
by  the  destruction  of  an  unmatured  crop  is  usually  regarded  as  too 
uncertain  to  be  compensated;^^®  but  compensation  based  on  the 
average  crop  of  that  year  has  been  allowed.^*"  Loss  of  profits  of 
the  crop  which  may  grow  cannot  be  recovered  for  breach  of  war- 
ranty of  the  seeds.^*^  Where  an  inferior  crop  is  raised,  the  dam- 
ages recoverable  are  the  difference  between  its  value  and  that  of 
the  same  crop  of  the  kind  warranted.^ *^  For  breach  of  a  contract 
of  partnership,  plaintiff  may  recover  such  profits  as  he  can  prove 
with  reasonable  certaint5\  Evidence  of  past  profits  is  admissible, 
but  not  conclusive.^ *^  Where  the  partnership  was  tenninable  on 
notice,  future  profits  cannot  be  recovered.^**  Profits  of  collateral 
transactions  are  usually  too  remote  and  uncertain  to  be  recovered 

457;  Benton  v.  Fay,  64  111.  417;  Cassidy  v.  Le  Fevre,  45  N.  Y.  562;  Pittsburg 
Coal  Co.  V.  Foster,  59  Pa.  St.  365;  Pettee  v.  Manufacturing  Co.,  1  Sneed,  381; 
Hinckley  v.  Beckwith,  13  Wis.  31;  Priestly  v.  Railroad  Co.,  26  111.  205;  Mid- 
dlekauff  v.  Smith,  1  Md.  329. 

13S  Willingham  v.  Hooven,  74  Ga.  233;  McKinnon  v.  McEwan,  48  Mich.  106, 
11  N.  W.  828;  Alls  V.  McLean,  48  Mich.  428,  12  N.  W.  640;  Krom  v.  Levy, 
48  N.  Y.  679;  Davis  v.  Railroad  Co.,  1  Disney,  23;  Pennypacker  v.  Jones,  106^ 
Pa.  St.  237;  Rogers  v.  Bemus,  69  Pa.  St.  432;  Bridges  v.  Lanham,  14  Neb. 
369.  15  N.  ^V.  704. 

13  9  Gresham  v.  Taylor,  51  Ala.  505;  Richardson  v.  Northrup,  66  Barb.  85; 
Roberts  v.  Cole,  82  X.  C.  292;  Texas  &  St.  L.  R.  Co.  v.  Young,  60  Tex.  201; 
McDaniel  v.  Crabtree,  21  Ark.  431;  Sledge  v.  Reid,  73  N.  C.  440;  Jones  v. 
George,  56  Tex.  149. 

140  Payne  v.  Morgan's  L.  &  T.  R.  &  S.  S.  Co.,  38  La.  Ann.  164;  Rice  v.  Whit- 
more,  74  Cal.  619,  16  Pac.  501. 

141  Butler  V.  Moore,  68  Ga.  780;  Ferris  v.  Comstock,  Ferre  &  Co.,  33  Conn. 
513. 

142  Schutt  V.  Baker,  9  Hun,  556;  Randall  v.  Raper,  EL,  Bl.  &  El.  84;  Wol- 
cott  V.  Mount,  36  N.  J.  Law,  262;  Passinger  v.  Thorburn,  34  N.  Y.  634;  White 
V.  Miller,  7  Hun,  427,  71  N.  Y.  118;  Flick  v.  Wetherbee,  20  Wis.  392.  See 
Van  Wyck  v.  Allen,  69  N.  Y.  61.     Contra,  Hurley  v.  Buchl,  10  Lea,  346. 

i43Bagley  v.  Smith,  10  N.  Y.  489;  M'Neill  v.  Reid,  9  Bing.  68;  Gale  v. 
lA'ckk'.  2  Starkie,  107;  Dart  v.  Laimbecr,  107  N.  Y.  664,  14  N.  E.  291;  Reiter 
V.  Morton,  96  Pa.  St.  229;  Dennis  v.  Maxficld,  10  Allen  i:W;  Wakeman  v.  Man- 
ufacturing Co.,  101  N.  Y.  205,  4  N.  E.  264;  Winslow  v.  Lane,  i;:]  .Mo.  161; 
Barnard  v.  Poor,  21  Pick.  378. 

144  Skinner  v.  Tinker,  34  Barb.  333;  Ball  v.  Brilluu,  58  Tex.  57. 


76  COMPENSATORY    DAMAGES.  (Gh.   3 

for  bleach  of  contract;^*"    but,  where  the  profit  is  the  thiug  con- 
tracted for,  it  may  be  recovered.^*" 

The  average  or  usual  A'alue  of  the  use  of  personal  property  is  the 
measure  of  damages  for  the  loss  of  its  use.^*^  For  the  loss  of  per- 
sonal property,  the  wholesale  market  value,  and  not  the  retail  value, 
is  the  measure  of  damages.^ *^  "The  retail  value  or  the  price  at 
which  goods  are  sold  at  retail  includes  the  expected  and  contingent 
profits,  the  earning  of  which  involves  labor,  loss  of  time,  and  ex- 
penses, supposes  no  damage  to  or  depreciation  in  the  value  of  the 
goods,  and  is  dependent  upon  the  contingency  of  finding  purchasers 
for  cash,  and  not  upon  ci-edit,  within  a  reasonable  time,  the  sale  of 
the  entire  stock  without  the  loss  by  unsalable  remnants,  and  the 
closing  out  of  a  stock  of  goods  as  none  ever  was  or  ever  will  be 
closed  out,  by  sales  at  retail,  at  full  prices."  ^*^ 

Prospective  Gains  from  Property  Totally  Destroyed. 

Anticipated  profits  or  gains  from  the  use  of  property  which  has 
been  totally  destroyed  by  defendant's  wrong  do  not  fall  within  the 
rule,  and  cannot  be  recovered.  In  such  cases  compensation  is  given 
for  the  whole  value  of  the  property  destroyed,  and  thereupon,  in 
legal  contemplation,  all  plaintiff's  title  and  interest  in  the  property 
ceases.  It  is  as  though  he  had  sold  it.  Having  received  full  value, 
and  parted  with  his  title  to  the  property,  plaintiff  cannot  justly 

ii"'  Fox  v.  Harding,  7  Cush.  516;  Smith  v.  Flanders,  129  Mass.  322;  Mace 
V.  Ramsey,  74  N.  C.  11;  Mitchell  v.  Cornell,  44  N.  Y.  Super.  Ct.  401;  Houston 
&  T.  C.  R.  Co.  V.  Hill,  63  Tex.  381;  Evans  v.  Railroad  Co.,  78  Ala.  341;  Mis- 
souri, K.  &  T.  R.  Co.  V.  City  of  Ft.  Scott,  15  Kaa.  435;  Shaw  v.  Hoffman, 
2.3  Mich.  162;  Watterson  v.  Allegheny  Val.  R.  Co.,  74  Pa.  St.  208;  Frye  v. 
Maine  Cent.  R.  Co.,  67  Me.  414. 

no  Masterton  v.  Mayor,  etc.,  7  Hill,  61;    Lentz  v.  Choteau,  42  Pa.  St.  435. 

147  Benton  v.  Fay,  64  111.  417;  Shelbyville  L.  B.  R.  Co.  v.  Lewark,  4  Ind. 
471;  Monroe  v.  Lattin,  25  Kan.  351;  Brown  v.  Hadley,  43  Kan.  267,  23  Pac. 
492;  Johnson  v.  Inhabitants  of  Holyoke,  105  Mass.  80;  Luce  v.  Hoisington,  56 
Vt.  436;  Wright  v.  Mulvaney,  78  Wis.  89,  46  N.  W.  1045;  Cushing  v.  Seymour, 
Sabin  &  Co.,  30  Minn.  301,  15  N.W.  249;  Fultz  v.  Wycoff,  25  Ind.  321;  Whitson 
V.  Gray,  3  Head,  441;  Brown  v.  Foster,  51  Pa.  St.  165;  Bohn  v.  Cleaver,  25 
La.  Ann.  419. 

14  8  Young  V.  Cureton,  87  Ala.  727,  6  South.  352. 

148  Wehle  V.  Haviland,  69  N.  Y.  448.  But  see  Alabama  Iron  Works  v.  Hur- 
ley. 86  Ala.  217,  5  South.  418. 


§    32)  ENTIRETY    OF    DEMAND.  77 

claim  compensation  for  gains  he  might  have  derived  from  its  future 
use.^^" 

ENTIRETY  OF  DEMAND. 

32.  All  the  damage  resulting  from  a  single  cause  of  action 
must  be  recovered  in  a  single  action.  The  demand 
cannot  be  split,  and  separate  actions  maintained  for 
the  separate  items  of  damage. 

A  single  cause  of  action  gives  rise  to  but  a  single  demand  for 
damages.  It  is  an  entirety.  Plaintiff  must  demand  the  full 
amount  of  damages  to  which  he  is  entitled  in  one  suit,  and  a  judg- 
ment therein  is  a  bar  to  any  subsequent  suit  on  the  same  cause  of 
action,  even  though  losses  arise  subsequently  which  could  not  have 
been  foreseen  or  proved  at  the  time  of  the  former  suit.  The  matters 
complained  of  have  become  res  judicata.  The  cause  of  action  can- 
not be  split,  and  separate  suits  maintained  for  the  recovery  of  each 
sex^arate  item  oi  damage.  A  cause  of  action  is  the  wrong  com- 
plained of;  that  is,  the  conjunction  of  conduct  and  damage.^ '^  Nei- 
ther alone  constitutes  a  legal  wrong.  When  an  award  of  damages 
has  been  once  made  for  a  wrong,  that  wrong  is  redressed.  Losses 
subsequently  arising,  without  a  renewal  or  continuance  of  the  con- 
duct, are  damnum  absque  injuria.^"-  On  this  principle,  a  recovery 
in  an  action  for  assault  and  battery  was  held  to  be  a  bar  to  a  sub- 
sequent action  for  additional  damages,  brought  upon  the  falling  out 
of  another  piece  of  plaintiff's  skull.^^'  Holt,  C.  J.,  said :  "Every  new 
dropping  is  a  nuisance,  but  it  is  not  a  new  battery;  and,  in  trespass, 
the  grievousness  or  consequence  of  the  battery  is  not  the  ground  of 
the  action,  but  the  measure  of  damages  which  the  jury  must  be  sup- 
posed to  have  considered  at  the  trial."      And  in  another  place  he 

15"  Sedg.  Dam.  §  178;  McKniglit  v.  Ratcliff,  44  Ta.  St.  luC;  Eiio  City  Iron 
Works  v.  Barber,  100  Pa,  St.  11^5;  Thomas  B.  &  W.  Mamif'g  Co.  v.  Wabasli, 
St.  L.  &  P.  Ry.  Co.,  G2  Wis.  642,  22  N    W.  827;    Edwards  v,  Beebe,  48  Barb. 

io<;. 

i"'!  See  ante,  p.  7  et  seq. 

^52  Wichita  &  W.  R.  Co.  v.  Beebe,  :'.',)  Kan.  4U~>,  IS  Pac.  .")(/_';  Howell  v.  (iond 
rich,  00  111.  .",0;  Pierro  v.  Railway  Co.,  3!)  Minn.  !."}!,  -10  X.  W.  yjn;  Win 
Blow  V.  Stokes,  ?,  .Tones  (N.  C.)  2S."). 

ir,.^  IVtter  V.  Beal.  1  Ld.  K;ivni.  :'.:;!»,  i;!iL'.   1   S:ilU.  11. 


78  COMPENSATORY    DAMAGKS.  (Ch.   3 

said :  "If  this  matter  had  been  given  in  evidence  as  that  which  in 
probability  might  have  been  the  consequence  of  the  battery,  the 
phiintifif  would  have  recovered  damages  for  it.  The  injury,  v/hich 
is  the  foundation  of  the  action,  is  the  battery,  and  the  greatness  or 
consequence  of  that  is  only  in  aggravation  of  damages." 

TIME    TO  WHICH    COMPENSATION    MAY  BE    RECOVERED- 
PAST  AND  FUTURE  LOSSES. 

33.  The  damages  recoverable  in  an  action  include  compen- 
sation not  only  for  losses  already  sustained  at  the 
time  of  beginning  the  action,  but  also  for  losses 
"w^hich  have  arisen  subsequently,  and  for  prospec- 
tive losses,  if  such  losses  are  the  certain  and  proxi- 
mate results  of  the  cause  of  action,  and  do  not  them- 
selves constitute  a  new  cause  of  action. 

Repetition  of  Wrong. 

Where  an  action  has  been  brought  for  a  wrong,  and  the  wrong 
is  subsequently  repeated,  a  new  action  must  be  brought  to  recover 
the  damages  caused  thereby.  Such  repetition  constitutes  a  new 
cause  of  action,  and  compensation  for  the  losses  caused  by  one  wrong 
cannot  be  recovered  in  an  action  brought  to  recover  the  damages 
caused  by  another  and  a  distinct  wrong.^°* 

Continuing  Torts  and  Breaches  oj  Contract. 

A  single  wrongful  act,  however,  may  be  of  such  a  nature  as  to  give 
rise  to  a  continuous  succession  of  toils  or  breaches  of  contracts. 
"In  the  case  of  a  personal  injury  the  act  complained  of  is  complete 
and  ended  before  the  date  of  the  writ.  It  is  the  damage  only  that 
continues  and  is  recoverable,  because  it  is  traced  back  to  the  act; 
while  in  the  case  of  a  nuisance  it  is  the  act  which  continues,  or, 
rather,  is  renewed  day  by  day.  The  duty  which  rests  upon  a  wrong- 
doer to  remove  a  nuisance  causes  a  new  trespass  for  each  day's  neg- 
lect." ^°^      In  this  class  of  cases,  therefore,  successive  actions  may 

154  lu  an  action  for  slander,  evidence  of  words  spoken  after  commencenieiu 
of  suit  are  inadmissible.  Root  v.  Lowndes,  G  Hill,  518;  Keenliolts  v.  Bec-kci-. 
3  Denio,  34G. 

155  Rockland  Water  Co.  v.  Tillson,  G9  Me.  255,  2G8.     An  excavation  on  oik-'s 


§    33)  PAST    AND    FUTURE    LOSSES.  79 

be  maintained  to  recover  compensation  for  the  successive  losses  sus- 
tained, because  each  loss  results  from  a  separate  cause  of  action.^^' 
For  the  same  reason,  the  damages  in  each  case  are  limited  to  com- 
pensation for  losses  already  sustained  at  the  time  of  bringing  the 
action.  Damages  for  prospective  losses  cannot  be  recovered,  for 
they  constitute  the  basis  of  new  actions.  A  continuing  tort  or 
breach  of  contract  is,  in  effect,  simply  the  repetition  of  the  same 
wrong  an  infinite  number  of  times.  For  instance,  where  defendant 
covenanted  to  keep  a  gate  in  repair,  each  moment  it  was  suffered 
to  remain  out  of  repair  constituted  a  separate  breach  of  the  cove- 
nant, for  which  a  separate  action  would  lie.  Therefore  the  dam- 
ages recoverable  in  an  action  for  the  breach  of  such  a  covenant  are 
limited  to  compensation  for  losses  already  suffered  at  the  time  of 
commencing  suit.^^''  As  a  general  rule,  where  a  continuous  duty  is 
Imposed  by  contract,  each  moment  its  performance  is  neglected  con- 
stitutes a  separate  breach,  for  which  an  action  will  lie.  This  has 
been  held  in  actions  for  the  breach  of  contracts  for  support,^ "^  con- 
tracts not  to  engage  in  business,^^^  and  contracts  to  convey  land.^^° 
Any  breach  of  an  entire  contract  may  be  treated  as  a  total 
breach,^"  and  often  the  neglect  of  a  continuing  duty  imposed  by 
contract  may  be  so  considered.^ ^^      Where  such  is  the  case,  the  en- 

own  land  is  not  a  tort;    but  causing  the  subsidence  of  a  neighbor's  laud  by 
such  excavation  is  a  tort.     Therefore  successive  actions  may  be  maintained 
for  successive  subsidences.     Darley  Main  Colliery   Co.  v.  Mitchell,  11  App. 
Cas.  127. 
15G  Rockland  Water  Co.  v.  Tillson,  09  Me.  255,  268. 

157  Beach  v.  Grain,  2  N.  Y.  8G. 

158  Fay  V.  Guynon,  131  Mass.  31. 

1 59  Hunt  V.  Tibbetts,  70  Me.  221. 

160  Warner  v.  Bacon,  8  Gray,  397. 

161  "Whether  a  contract  be  single  and  entire  or  apportlonable,  If  there  Is 
a  total  abandonment  or  breach  by  one  party,  the  other  has  a  single  cause  of 
action  upon  the  entire  contract  if  he  think  proper  to  act  on  the  breach  as  a 
total  one;  and  the  better  opinion  is  that  he  is  obliged  to  do  so.  A  party  has 
a  right  to  break  his  contract  on  condition  of  being  liable  for  the  damages  whicli 
will  accrue  therefrom  at  the  time  he  elects  to  do  so."  Suth.  Dam.  225.  S(m\ 
fllKO,  Fish  V.  Folley,  0  Hill,  54. 

162  Suth.  Dam.  250;  Grand  Rapids  &  B.  C.  R.  Co.  v.  Van  Deusen,  2!)  .Miili. 
431;  Town  of  Royalton  v.  Royallon  i^  W.  Tiu-npikc  Co..  14  Vf.  .'ill;  Witlicrs 
V.  Reynolds,  2  Barn.  &  Adol.  SS2;    Fish  v.  Foll.-y,  0  Hill,  51;    CiMiii  v.  Hc-idi. 


80  COMPENSATORY    DAMAGES.  (Ch.   3 

tire  damage,  both  past  and  prospective,  may  be  recovered  in  a  single 
action,  and  the  judgment  is  a  bar  to  any  subsequent  action.  The 
breach  of  a  contract  to  support  plaintiff  for  life  has  sometimes  been 
regarded  as  a  total  breach,  and  plaintiff  allowed  to  recover  the  en- 
tire value  of  the  promised  support  in  one  action;  ^^^  but,  as  the  con- 
tract imposes  a  continuous  duty,  any  breach  may  be  regarded  as  a 
partial  one  onh-,  and  successive  actions  may  be  maintained.^^* 
Whether  an  act  is  a  total  or  only  a  partial  breach  is  rather  a  ques- 
tion of  the  law  of  contracts  than  of  damages.  In  doubtful  cases  it 
should  be  left  to  the  jury.^^'' 
JUustradons. 

Illustrations  of  continuing  torts  are  numerous.  In  an  action  for 
false  imprisonment,  damages  cannot  be  given  for  a  continuance  of 
the  imprisonment  after  the  commencement  of  the  action,  for  every 
instant  of  detention  without  just  cause  is  an  independent  tort,^*** 
So,  also,  a  nuisance  gives  rise  to  a  fresh  cause  of  action  every  mo- 
ment it  is  maintained;  and  therefore  the  damages  recoverable  are 
limited  to  those  already  suffered  at  the  commencement  of  the  suit."^ 

•2  Barb.  124;  Beach  v.  Grain,  2  N.  Y.  S6;  Keck  v.  Bieber,  14S  Pa.  St.  (545,  24 
All.  170.  See,  also.  Badger  v.  Titcomb,  15  Pick.  409.  In  Cooke  v.  England, 
27  Md.  14,  it  was  held  that  both  past  and  prospective  damages  could  be  re- 
covered for  breach  of  a  contract  to  repair  machinery  in  a  mill,  for  the  con- 
tract could  not  be  kept  alive.  But,  for  breach  of  a  contract  to  keep  cattle 
passes  in  repair,  prospective  damages  cannot  be  recovered.  Phelps  v.  New 
Haven  &  N.  Co.,  4,3  Conn.  453. 

163  Covenants  for  support  and  maintenance  during  life  are  entire,  and  any 
breach  entitles  the  injured  party  to  recover  entire  damages  as  for  a  total 
breach.  Schell  v.  Plumb,  55  N.  Y.  592;  Dresser  v.  Dresser,  35  Barb.  573; 
Shaffer  v.  Lee,  8  Barb.  412;  Trustees  of  Howard  College  v.  Turner,  71  Ala. 
429;  Wright  v.  Wright.  49  Mich.  G24,  14  N.  W.  571;  Parker  v.  Russell,  133 
Mass.  74. 

164  Suth.  Dam.  25G;  Fiske  v.  Piske,  20  Pick.  499;  Berry  v.  Harris,  43  N.  H. 
376;    Ferguson  v.  Ferguson,  2  N.  Y,  3G0;    Turner  v.  Hadden,  G2  Barb.  480. 

165  Sedg.  Dam.  125;    Shaffer  v.  Lee,  8  Barb.  412;  Remelee  v.  Hall.  31  Vt.  5S2. 

166  Brasfield  v.  Lee,  1  Ld.  Raym.  329;    Withers  v.  Henley,  Cro.  Jac.  379. 

167  Denver  City  Irrigation  &  Water  Co.  v.  Middaugh,  12  Colo.  434,  21  Pae. 
565;  Duncan  v.  Markley,  1  Harp.  276;  Cobb  v.  Smith,  38  Wis.  21;  Stadlor 
V.  Grieben,  61  Wis.  500,  21  N.  W.  629.  See,  also,  Pearson  y.  Carr,  97  X.  C. 
194,  1  S.  E.  916;  Dailey  v.  Canal  Co.,  2  Ired.  222.  In  an  action  for  flowiuj: 
land,  damages  can  be  recovered  only  for  losses  suffered  prior  to  bringing  suit 
Polly  V.  McCall,  37  Ala.  20;    Benson  v.  Railroad  Co.,  78  Mo.  504;    Nashville 


§    33)  PAST    AND    FUTURE    LOSSES,  81 

The  reason  and  necessity  of  permitting  successive  actions  in  this 
class  of  cases  is  very  clear.  It  is  one's  duty  to  discontinue  a  tres- 
pass or  remove  a  nuisance.^ °^  The  law  cannot  presume  that  defend- 
ant will  continue  the  wrong,  nor  will  it  permit  him  to  acquire  a  right 
to  continue  it,  by  permitting  a  recovery  therefor  in  advance.^ "^ 
Thus,  where  the  wrong  consists  in  the  unlawful  maintenance  of  a 
private  structure,  or  an  unlawful  use  of  land,  the  wrong  cannot  be 
presumed  to  be  permanent;  and  therefore  prospective  damages  can- 
not be  recovered.  This  principle  has  been  applied  in  actions  for  ob- 
structing a  stream,^^"  for  obstructing  ancient  lights,"^  for  filling  a 
canal,^'^  and  for  laying  out  a  highway  around  plaintiff's  toll  gate.^^^ 
Where  an  injury  to  plaintiff's  land  consists  of  a  trespass  which 
defendant  cannot  remedy  without  committing  another  trespass,  the 
wrong  is  not  regarded  as  a  continuing  one,  and  damages  for  the  en- 
tire loss  must  be  recovered  in  one  action.     Making  an  excavation  ^^* 

V.  Comar,  SS  Tenn.  415,  12  S.  W.  1027;  Hargreaves  v.  Kimberly,  26  W.  Va. 
7S7.  So,  also,  in  actions  for  diverting  water  courses,  Langford  v.  Owsley,  2 
Bibb,  215;  Dority  v.  Dunning,  78  Me.  387,  6  Atl.  6;  Shaw  v.  Etberidge,  3 
Jones  (N.  C.)  300;   or  for  polluting  it,  Sanderson  v.  Coal  Co.,  102  Pa.  St.  370. 

168  There  is  a  legal  obligation  to  discontinue  a  trespass  or  remove  a  nui- 
sance.    Clegg  V.  Dearden,  12  Q.  B.  601;   Savannah,  F.  &  W.  R.  Co.  v.  Davis, 

25  Fla.  917,  7  South.  29;  Adams  v.  Railroad  Co.,  18  Minn.  2G0  (Gil.  236); 
Barrick  v.  Schifferdecker,  48  Hun,  3r.o,  1  N.  Y.  Supp.  21;  Cumberland  &  O.  C. 
Corp.  V.  Hitchings,  65  Me.  140. 

169  Suth.  Dam.  255;  Adams  v.  Railroad  Co..  IS  Minn.  260  (Gil.  236);  Ford 
V.  Railroad  Co.,  14  Wis.  663;  Uline  v.  Railroad  Co.,  101  N.  Y.  98,  4  N.  E.  536; 
Savannah  &  O.  C.  Co.  v.  Bourquin,  51  Ga.  378;  Hanover  Water  Co.  v.  Ash- 
land Iron  Co.,  84  Pa.  St.  279;  Whitmore  v.  Bischoff,  5  Hun,  170;  Sliermau 
v.  Railroad  Co.,  40  Wis.  645;  Russell  v.  Brown,  63  Me.  203;  Bowyer  v.  Cook, 
4  C.  B.  236;    Cumberland  &  O.  C.  Corp.  v.  Hitchings,  65  Me.  140. 

170  Damages  can  be  recovered  for  the  unauthorized  obstruction  of  a  stream 
by  a  dam  only  up  to  the  commencement  of  suit.  Langford  v.  Owsley,  2  Bibb, 
215;  Williams  v.  Water  Co.,  79  Me.  543,  11  Atl.  600;  Van  Hoozier  v.  Railroad 
^.'o.,  70  Mo.  145;  Thayer  v.  Brooks,  17  Ohio,  489;  Bare  v.  Hoffman,  79  Pa. 
St.  71. 

171  Blunt  v.  McCormick,  3  Donio,  283.     See,  also.  Union  Tru.st  Co.  v.  Cuppy. 

26  Kan.  754;  Spilman  v.  Navigation  Co..  74  N.  C.  075;  Winchester  v.  Ste- 
vens Point,  58  Wis.  350,  17  N.  W.  547;    Moore  v.  Hall,  3  Q.  B.  Div.  178. 

172  Cumberland  &  O.  C  Corp.  v.  Hitchings,  65  Me.  140. 

173  Chephire  Turnpike  v.  Stcvons.  13  X.  IT.  28. 

i74Kansns  P.  Ry.  Co.  v.  Miblinan,  17  Kan,  224;  Cli-gg  v.  Deardtn,  12  Q. 
B.  576. 

LAV,'  DAM.— 6 


82  COMPENSATORY    DAMAGES.  (Ch.    3 

or  embankment  ^^'^  on  plaintiff's  land,  or  filling  up  bis  pond/'"^  are 
instances  where  tbis  rule  has  been  properly  applied.^'"      In  these 
cases  there  is  continuing  damage,  but  no  continuing  conduct.     The 
trespass — the  wrong — was  completed  once  for  all. 
Damage  Caused  by  Permanent  Structures. 

Where  permanent  structures  have  been  erected  which  result  in  in- 
jury to  land,  there  is  much  confusion  and  conflict  in  the  authorities 
as  to  whether  all  the  damages,  past  and  prospective,  may  be  re- 
covered in  a  single  suit,  or  whether  successive  actions  must  be 
brought  to  recover  compensation  for  the  damage  as  it  arises.  The 
confusion  is  largely  due  to  a  lack  of  clear  conception  as  to  the  funda- 
mental nature  of  legal  rights.  The  terms  "legal"  and  "illegal," 
"rightful"  and  "wrongful,"  have  not  been  used  with  precision;  and, 
as  a  consequence,  precedents  have  been  misapplied.  It  is  impossi- 
ble to  reconcile  all  the  cases.  One  line  of  decision  holds  that  where 
permanent  stnictures  are  erected,  resulting  in  injury  to  lands,  all 
damages  may  be  recovered  in  a  single  suit.  Thus,  it  was  said 
in  an  Iowa  case:  ^^*  "Where  a  nuisance  is  of  such  a  character  that 
its  continuance  is  necessarily  an  injury,  and  when  it  is  of  a  perma- 
nent character,  that  will  continue  without  change  from  any  cause 
but  human  labor,  the  damage  is  original,  and  may  be  at  once  fully 
estimated  and  compensated."  So,  it  has  been  held  that  compensa- 
tion for  the  entire  loss,  both  past  and  prospective,  caused  by  a  rail- 
road embankment,  must  be  recovered  in  one  suit.^®°  But  even  in 
such  cases  the  ordinary  rule  has  been  applied  in  some  states,  and 
damages  are  recoverable  only  to  the  commencement  of  the  action.^ ^^ 

i'5Ziebarth  v.  Nye,  42  Minn.  541,  44  N.  W.  1027. 

176  Fiuloy  v.  Hersbey,  41  Iowa,  380. 

177  WhtTo  defendant  flooded  plaintiff.'s  mine  by  breaking  through  into  it, 
the  entire  damage  must  be  recovered  in  one  action.  National  Copper  Co.  v. 
Minnesota  Min.  Co.,  57  Mich.  S3,  23  N.  W.  781;  Lord  v.  ^Manufacturing  Co., 
42  N.  J.  Eq.  157,  6  Atl.  812. 

179  Stodghill  V.  Railroad  Co.,  .53  Iowa,  341,  5  N.  W.  495.  See,  also,  Van 
Orsdol  V.  Railroad  Co.,  .5(3  Iowa,  470.  9  N.  AV.  379. 

180  Indiana,  B.  &  W.  R.  Co.  v.  Eberle,  110  Ind.  .542,  11  N.  E.  467;  Chi- 
cago &  E.  I.  R.  Co.  V.  Loeb,  118  111.  203,  18  N.  E.  460.  See,  also,  Fowle  v. 
New  Haven  &  Northampton  Co.,  112  Mass.  334;  Town  of  Troy  v.  Cheshire 
R.  Co..  23  N.  H.  S3;   Adams  v.  Railroad  Co.,  18  Minn.  260  (Gil.  2.36). 

181  nine  V.  Railroad  Co.,  101  N.  Y.  98,  4  N.  E.  536;    Dur:-ea  v.  .Mayor,  etc.. 


§    33)  PAST    AND    FUTURE    LOSSES.  83 

Reverting  to  first  principles  for  a  moment,  the  whole  matter  be- 
comes clear.  If  the  structure  is  expressly  authorized,  there  is  no 
liability  for  the  damage  necessarily  resulting.  If  it  is  authorized 
on  condition  that  compensation  be  made  for  the  resulting  damage 
(a  condition  commonly  imposed  by  the  authorizing  act  or  the  consti- 
tution), and  it  is  permanent  in  its  nature,  its  continuance  may  rea- 
sonably be  presumed,  and  full  compensation  for  both  past  and  pro- 
si)ective  losses  may  be  recovered  in  one  action.^ *^  It  is  on  this  prin- 
ciple that  the  railroad  embankment  case,  supra,  and  other  like  cases, 
are  to  be  sustained.  Of  course,  if  an  authorized  permanent  work  is 
done  negligently,  and  the  negligence  results  in  a  continuing  injury, 
it  cannot  be  presumed  that  the  negligence  will  continue,  but,  rather, 
that  it  will  be  remedied ;  and  compensation  can  therefore  be  recov- 
ered only  to  the  commencement  of  the  action,  and  subsequent  ac- 
tions must  be  brought  for  damages  subsequently  accruing.^  ^^ 

Where  the  erection  of  the  structure  was  a  forbidden  act,  that  is, 
where  it  was  a  trespass,  and  the  act  of  trespass  is  completed  once 
for  all,  the  entire  damage,  past  and  prospective,  must  be  recovered 
in  one  suit*      Continuing  damage  does  not  make  a  continuing  tres- 

20  Hun,  120;  Blunt  v.  McCormick,  3  Denio,  283;  Cooke  v.  England,  27  Md. 
14,  92  Am.  Dec.  G30,  and  notes;  Keed  v.  State,  108  N.  Y,  407,  15  N.  E.  735; 
Hargreaves  v.  Kimberly,  26  W.  Va.  787;  Ottenot  v.  Railroad  Co.,  119  N.  Y. 
G03.  23  N.  E.  169;  Barrick  v.  Scliifferdecker,  123  N.  Y.  52,  25  N.  E.  365;  Aid- 
worth  V.  City  of  Lynn,  153  Mass.  53,  26  N.  E.  229;  Town  of  Troy  v.  CliGsbire 
K.  Co.,  23  N.  H.  83;  Cobb  v.  Smith,  38  Wis.  21;  Delaware  &  R.  Canal  Co.  v. 
Wright,  21  N.  J.  Law,  469;  Wells  v.  New  Haven  &  Northampton  Co.,  151 
Mass.  46,  23  N.  E.  724;  Cooper  v.  Randall,  59  111.  317;  Joseph  Schlitz  Brew- 
ing Co.  v.  Compton,  142  111.  511,  32  N.  E.  693. 

182  Chicago  &  E.  I.  R.  Co.  v.  Loeb,  118  111.  203,  8  N.  E.  460;  Jeffersonville, 
M.  &  I.  R.  Co.  V.  Esterle,  13  Bush.  667.  But  see  Uline  v.  Railroad  Co.,  101  N. 
Y.  98,  4  N.  E.  536;  Pond  v.  Railrnnd  Co.,  112  N.  Y.  186,  19  N.  E.  487,  and  cases 
cited  in  preceding  note.     Cf.  Cadlo  v.  Railroad  Co.,  44  Iowa,  11. 

183  Aldworth  v.  City  of  Lynn,  153  Mass.  53,  26  N.  E.  229;  City  of  Eufaula  v. 
Simmons.  SO  Ala.  .51.5,  6  South.  47;  Reed  v.  State.  108  N.  Y.  407,  15  X.  E.  7:'.5; 
Duryea  v.  Mayor,  etc.,  26  Hun,  120.  See.  also,  City  of  Noith  Vernon  v.  Voeg- 
ler.  103  Ind.  314,  2  N.  E.  821.  Powers  v.  City  of  Council  Bluffs.  45  Iowa.  (Vt2, 
rolled  on  in  Stodghill  v.  Railroad  Co.,  53  Iowa,  341,  5  N.  W.  495.  cannot  be 
sustained.  In  this  case  the  construction  of  the  ditch  by  fhc  city  \v:is  :m 
authorizt'd  act.  but  it  was  done  negligently. 

*  See  Adiinis  v.  Kiiilroad  Co.,  18  -Minn.  200  (Gil.  230). 

I 


84  COMPENSATORY    DAMAGES.  (Ch.    S 

pass.  There  must  be  continuing  conduct  as  well.  Thus,  where 
a  trespasser  digs  a  ditch  on  another's  land,  and  leaves  it,  the  con- 
tinued existence  of  the  ditch  does  not  make  the  wrong  a  continuing 
trespass.^ ^*  It  constitutes  merely  a  continuing  damage.  The  tres- 
pass was  complete  when  the  trespasser  left  the  premises.  Conse- 
quently, the  entire  damages,  past  and  prospective,  must  be  recovered 
in  one  action.  The  trespasser  is  not  guilty  of  continuing  a  trespass 
or  maintaining  a  nuisance  because  he  is  under  no  duty  to  remedy  it. 
He  could  not  do  so  without  committing  a  new  trespass. 

It  is  sometimes  stated  that  "if  a  man  throws  a  heap  of  stones  or 
builds  a  wall  or  plants  posts  or  rails  on  his  neighbor's  land,  and 
there  leaves  them,  an  action  will  lie  against  him  for  the  trespass^ 
and  the  right  to  sue  will  continue  from  day  to  day  until  the  incum- 
brance is  removed."  ^"^  This  is  essentially  not  true.  The  wrong- 
ful conduct  was  complete  when  the  stones  or  wall  were  placed  on 
the  other's  land  and  the  trespasser  had  departed.  He  could  not 
then  remove  them  without  committing  a  new  trespass.  The  tort 
is  completed,  but  the  damage  is  continuing.  The  law  is  not  so  ab- 
surd as  to  hold  one  liable  for  continuing  what  it  forbids  him  to  dis- 
continue. But  where  the  trespasser  remains  in  possession  and  con- 
trol, or  maintains  or  uses  the  structure  erected  by  him,  then  we  have 
a  continuing  trespass,  because  there  is  continuing  conduct.  Suc- 
cessive actions  may  therefore  be  maintained  from  day  to  day  so  long 
as  such  trespass  is  continued.  Thus,  railroad  companies  which^ 
by  trespass,  had  entered  upon  the  lands  of  individuals,  and  begun 
the  construction  and  operation  of  railroads,  were  held  liable  as  tres- 
passers from  day  to  day  so  long  as  the  operation  of  the  road  was 
continued.^*'      Staging  and  continuing  in  a  house  is  a  divisible  tres- 

184  Kansas  Pac.  Ry.  Co.  v.  Mihlman.  17  Kan.  224. 

188  1  Add.  Torts,  aS2.  See,  also,  Russell  v.  Brown,  63  Me.  203.  In  National 
Copper  Co.  v.  Minnesota  Min.  Co.,  57  Mich.  S3,  23  N.  W.  781,  Cooley,  J.,  draws 
a  distinction  between  leaving  a  hole  on  another's  premises,  and  leaving  house* 
or  other  obstructions  there;  saying  that  physical  hindrances  are  a  continuance 
of  the  original  force,  and  therefore  are  continuing  trespasses,  but  that  a  hole 
is  only  the  consequence  of  a  wrongful  force  which  ceased  to  operate  the  mo- 
ment it  was  made.  The  distinction  is  unsoimd.  See  Kansas  Pac.  Ry.  Cc 
T.  Mihlman,  17  Kan.  224.  233.  per  Brewer,  .T. 

186  Adams  v.  Railroad  Co.,  IS  Minn.  260  (Gil.  236);  Town  of  Troy  v.  Chesh- 
ire R.  Co.,  23  X.  H.  S3. 


§    o3j  PAST   AND    FUTURE    LOSSES.  85 

pass  in  point  of  time.  There  is  a  fresh  trespass  on  each  day.^^^ 
Judge  Cooley  pronounced  the  principle  of  these  decisions  not  open  to 
criticism.  "In  each  of  them  there  was  an  original  wrong,  but  there 
was  also  a  persistency  in  the  wrong  from  day  to  day.  The  plain- 
tiff's possession  was  continually  invaded,  and  his  right  to  the  ex- 
clusive occupation  and  enjoyment  of  his  freehold  continually  en- 
croached upon  and  limited.  Each  day,  therefore,  the  plaintiff 
suffered  a  new  wrong,  but  no  single  suit  could  be  made  to  embrace 
prospective  damages,  for  the  reason  that  future  persistency  in  the 
wrong  could  not  legally  be  assumed."  ^^^ 

Where  the  erection  of  the  structure  was  neither  authorized  nor 
forbidden,  but  it  is  wrongful,  because  it  results  in  injury  to  plain- 
tiff's land, — that  is,  where  it  is  a  nuisance, — though  the  structure  is 
permanent  in  its  nature,  and  "will  continue  without  change  from 
any  cause  but  human  labor,"  and  its  continuance  may  be  presumed, 
the  damages  cannot  be  estimated  beyond  the  date  of  bringing  the 
action,  because,  in  the  case  of  an  ordinary  nuisance,  the  cause  of  ac- 
tion is  not  so  much  the  act  of  the  defendant  as  the  damage  resulting 
from  his  act,  and  hence  the  cause  of  action  does  not  arise  until  such 
consequences  occur.^®'  Thus,  it  was  held  in  an  action  by  a  tenant 
against  his  landlord  to  recover  damages  because  of  the  latter's  erec- 
tion of  buildings  adjoining  the  demised  premises,  which  shut  out 

187  Per  Parke,  B.,  in  Loweth  v.  Smith,  12  Mees.  &  W.  5S2.  Where  a  turn- 
pike company  had  placed  buttresses  on  the  phiintift's  land  for  the  support  of 
its  road,  it  was  held  that  a  recovery  of  damages  for  the  trespass  did  not  bar 
a  subsequent  action  for  the  continuance  of  the  buttresses.  "The  continued 
use  of  the  buttresses  for  the  support  of  the  road,  under  such  circumstances, 
was  a  fresh  trespass."  Holmes  v.  Wilson,  10  Adol.  &  E.  503.  Brewer,  J., 
said  that  it  was  very  doubtful  whether  this  ruling  could  be  sustained  upon 
principle.     Kansas  Pac.  Ry.  Co.  v.  Mihlman,  17  Kan.  232. 

188  National  Copper  Co.  v.  Minnesota  Min.  Co.,  supra. 

189  In  Whitehouse  v.  Fellowes,  10  C.  B.  (N.  S.)  705,  it  was  said  by  counsel, 
arguendo:  "The  distinction  which  pervades  the  cases  is  this:  Where  the 
plaintiff  complains  of  a  trespass,  the  statute  runs  from  the  time  when  the  act 

.of  trespass  was  committed,  except  in  the  case  of  a  continuing  trespass.  But 
where  the  cause  of  action  is  not  in  itself  a  trespass,  as  an  act  done  upon  a 
man's  own  land,  and  the  cause  of  action  Is  the  consequential  Injury  to  the 
plaintiff,  there  the  period  of  limitation  runs  from  the  time  the  damage  l.s  sus- 
taiuod.'  Approved  by  Cooley,  .T.,  in  National  Coi)per  Co.  v.  Mhino.sota  Mln. 
Co..  57  Mifli.  S.".,  2.".  \.  AV.  7S1. 


86  COMPENSATORY    DAMAGES.  (Ch.    S' 

the  light  from  the  tenant's  doors  and  windows,  that  damages  could 
only  be  recovered  for  the  time  which  had  elapsed  when  the  suit 
was  commenced,  and  not  for  the  whole  term.^°°  So,  where  a  rail- 
road company  constructed  a  culvert  under  its  emhankment,  which 
damaged  land  by  discharging  water  upon  it,  it  was  held  that  the 
case  fell  within  the  ordinary  rule  applicable  to  continuing  nuisances 
and  trespasses.^ ®^ 

As  before  stated,  all  the  cases  are  not  consistent  with  these  con- 
clusions, but  there  is  ample  authority  to  sustain  them,  and  it  is  sub- 
mitted that  they  are  sound  in  principle. 

ELEMENTS  OF  COMPENSATION. 

34.  Damage   in  respect  to    anything  in  the  enjoyment  of 

"which  one  is  protected  by  law  may  be  a  subject  for 
compensation. 

35.  Damage  for  which  the  law  affords  compensation  may 

be  divided  into  three  classes: 

(a)  Pecuniary  losses,  direct  and  indirect  (p.  87). 

(b)  Physical  pain  and  inconvenience  (p    91). 

(c)  Mental  suffering  (p.  92). 

It  has  been  seen  that  the  law  awards  damages  only  for  injuries 
to  person,  property,  or  reputation.  An  injury  in  an}'  one  of  these  re- 
spects may  affect  one  in  one  or  more  of  three  ways.  It  may  cause 
(1)  pecuniary  loss,  direct  or  indirect;  (2)  physical  pain  and  incon- 
venience; and  (3)  mental  suffering.  All  three  are  proper  elements 
of  compensation  to  be  considered  in  estimating  damages.  Compen- 
sation is  necessarily  aw^arded  in  money,  and  it  will  be  observed  that 
but  one  of  the  elements  of  damage  is  pecuniary.  Breaches  of  con- 
tract and  interference  with  property  rights,  where  the  sole  question 
is  as  to  the  value  of  the  property  involved,  may  result  solely  in  pe- 
cuniary damage.  Damage  is  said  to  be  pecuniary  either  when 
money  itself  is  lost,  or  the  damage  is  such  as  can  be,  and  usually  is 

190  Blunt  V.  McCormick,  3  Denio,  283. 

191  Wells  V.  New  Haven  &  Northampton  Co.,  151  Mass.  46,  23  N.  E.  724. 
See,  also,  Uline  v.  Railroad  Co.,  101  N.  Y.  98,  4  N.  E.  536.  Cf.  Fowle  v.  New 
Haven  &  Northampton  Co.,  112  Mass.  334. 


§    36)  ELEMENTS    OF    COMPEXSATIOX PECUNIARY    LOSSES.  87 

measured  by  a  pecuniary  standard.^^^  But  usually  where  the  in- 
jury is  to  the  person,  and  in  some  classes  of  contracts,  the  damage 
Avill  be,  in  part  at  least,  nonpecuniary.  Thus,  a  physical  injury  may 
result  in  pecuniary  loss  from  diminished  earning  power,  and  also  in 
physical  and  mental  suffering.  Physical  and  mental  suffering  are 
nonpecuniary,  though  none  the  less  actual,  elements  of  injury,  and 
must  be  compensated  in  money,  though  there  is  no  pecuniary  stand- 
ard by  which  they  may  be  measured.  The  extent  of  compensation 
for  such  injuries  is  for  the  jury. 

SAME— PECUNIARY  LOSSES. 

36.  Compensation   for  all  pecuniary  losses  which  are  the 
proximate  and  certain  result  of  the  cause  of  action 
may  be  recovered,  except — 
EXCEPTION — Counsel  fees  incurred  in  litigation  caused 
by  the  -w^rong  are  usually  not  recoverable. 

Generally  speaking,  pecuniary  losses  are  always  an  element  in  es- 
timating the  damages  caused  by  a  wrong.  Indeed,  in  the  great  ma- 
jority of  cases,  it  is  the  most  important  one.  Pecuniary  losses  are 
sustained  whenever  property  is  taken  or  damaged,  when  the  profits 
of  a  contract  are  lost,  or  one's  earning  capacity  diminished.  Other 
forms  of  pecuniary  loss  will  readily  occur  to  every  mind.  As  a  gen- 
eral rule,  compensation  is  always  recoverable  for  such  losses  when 
they  are  the  proximate  and  certain  result  of  an  actionable  wrong. 

Expenses  of  Litigation. 

The  expenses  of  litigation  to  obtain  compensation  for  a  wrong, 
though  the  natural  and  probable  consequence  of  an  injury,  cannot 
usually  be  recovered  as  damages.^"*      "In  general,  the  law  considers 

102  Sedg.  Dam.  p.  95. 

!»♦  CONTRACTS.  Goodbar  v.  Lindsley,  51  Ark.  380,  11  S.  "SV.  577;  Vorse  v. 
Phillips,  37  Iowa,  428;    Offutt  v.  Edwards,  9  Rob.  (La.)  90. 

TORTS.  Flanders  v.  Tweed,  15  Wall.  450;  Winstead  v.  iiuline,  32  Kan. 
.^•G8,  4  rac.  994;  Kelly  v.  Rogers,  21  Minn.  14G;  Winkler  v.  Roeder,  23  Neb. 
70(5,  37  N.  W.  607;  Atkins  v.  Cindwisli,  25  Nob.  :VM).  41  N.  W.  :'.47;  Hicks  v. 
Foster,  13  Barb,  or.3;  Weldi  v.  Railroad  Co..  12  Hicli.  Law.  2!tO;  Hnrnard  v. 
Poor,  21  r'ifk.  :;78;    Bishop  v.  Ilfiidrlck,  S'J  I  Inn.  :VS.'..  31  N.  ^■.  Siipp.  5(>i:.      Not 


88  COMPENSATORY    DAMAGES.  (Ch.   3 

tbe  taxed  costs  as  the  only  damage  which  a  party  sustains  by  the 
defense  of  a  suit  against  him,  and  these  he  recovers  by  the  judgment 
in  his  favor."  ^®'  The  rule  excludes  compensation  for  counsel^*'' 
and  witness  ^"^  fees,  and  for  time  and  expense  in  attending  court/** 
The  law  has  arbitrarily  fixed  the  taxable  costs  as  the  limit  of  com- 
pensation for  this  class  of  losses.^ '^'*  Beyond  this,  the  loss  is  dam- 
num absque  injuria.  In  some  states  a  recovery  for  expenses  beyond 
taxable  costs  has  been  allowed  in  cases  where  exemplary  damages 

eveu  when  tbe  actiou  was  vexatious.  JSalado  College  v.  Davis,  47  Tex.  131. 
In  some  cases,  the  jury  have  been  permitted  to  consider  such  expenses  for  the 
purpose  of  giving  full  indemnity.  Whipple  v.  Cumberland  Manuf'g  Co.,  2 
Story,  GGl,  Fed.  Cas.  No.  17,516;  Piatt  v.  Brown,  30  Conn.  33G;  Welch  v. 
Durand,  30  Conn.  182;  Finney  v.  Smith,  31  Ohio  St.  521);  Armstrong  v.  Pier- 
son,  S  Iowa,  29;    Kose  v.  Belyea,  1  Haun,  101). 

Counsel  fees  in  admiralty  suits  are  not  allowed,  Arcambel  v.  Wiseman,  3 
Dall.  306;  The  Margaret  v.  The  Connestoga,  2  Wall.  Jr.  116,  Fed.  Cas.  No. 
9,070;  though  the  rule  has  been  doubted,  The  AppoUon,  9  Wheat.  362;  Canter 
V.  American  Ins.  Co.,  3  Pet.  307.  Nor  in  patent  suits,  Blanchard's  Gun-Stock 
Turning  Factory  v.  Warner,  1  Blatchf.  258,  Fed.  Cas.  No.  1,521;  Stimpsou  v. 
The  Railroads,  1  Wall.  Jr.  164,  Fed.  Cas.  No.  13,456;  Whittemore  v.  Cutter, 
1  Gall.  429,  Fed.  Cas.  No.  17,600.  though  the  contrary  has  been  held,  Boston 
Manuf'g  Co.  v.  Fiske,  2  Mason,  119,  Fed.  Cas.  No.  1,681;  Piersou  v.  Eagle 
Screw  Co.,  3  Story,  402.  Fed.  Cas.  No.  11,156;  Allen  v.  Blunt,  2  Woodb.  & 
M.  121,  Fed.  Cas.  No.  217.  Where  an  assessment  is  made  for  a  contractor, 
and  is  held  invalid  in  his  suit  against  the  owner  to  collect  it,  in  a  subsequent 
action  against  the  city  to  recover  the  contract  price  of  the  work  the  contractor 
cannot  recover  counsel  fees  in  the  prior  suit.  City  of  Toledo  v.  Goulden,  3 
Ohio  Dec.  124;  City  of  Cincinnati  v.  Steadman,  8  Ohio  Cir.  Ct.  R.  407.  Where 
a  city  erroneously  assumes  that  a  certain  w-ay  is  a  public  street,  and  passes 
an  ordinance  to  change  its  grade,  an  abutting  owner  is  entitled  to  recover  of 
the  city  the  expense  incurred  by  him  in  showing  that  it  has  no  rights  in  such 
way.  Huckestein  v.  Allegheny  City,  165  Pa.  St  367,  30  Atl.  982.  Where  prop- 
erty Is  wrongfully  seized  on  execution,  the  owner  is  entitled  to  a  reasonable 
amount  for  attorney's  fees  expended  in  an  action  to  protect  his  rights.  Gilker- 
son-Sloss  Commission  Co.  v.  Yale,  17  South.  244,  47  La.  Ann.  690. 

198  Young  T.  Courtney,  13  La.  Ann.  193.  See,  also,  Adams  v.  Cordis,  8  Pick. 
260. 

inGOelrichs  v.  Spain,  15  Wall.  211;  Henry  v.  Davis,  123  Mass.  345;  War- 
ren V.  Cole,  15  Mich.  265;  Haverstick  v.  Erie  Gas  Co.,  29  Pa.  St.  254;  Guild 
v.  Guild.  2  Mete.  (Mass.)  229. 

197  Gulf.  C.  &  S.  F.  Ry.  Co.  v.  Campbell,  76  Tex.  174,  13  S.  W.  19. 

198  Jaco])son  v.  Poindexter,  42  Ark.  97. 

199  Sedg.  Dam.  339, 


§    36)  ELEMENTS    OF    COMPENSATION PECUNIARY    LOSSES.  89 

have  been  held  proper;  2°°  but  these  cases  have  not  been  generally 
followed,  and  are  difficult  to  be  sustained  on  principle,  for  such  dam- 
ages are  plainly  compensatory. ^"^  "The  punishment  of  defendant's 
delinquency  cannot  be  measured  by  the  expenses  of  the  plaint  i If  in 
prosecuting  his  suit."  ^°^ 

^ame — Expenses  of  Prior  Litiyation. 

Where  one  has  in  good  faith  defended  an  action  for  the  benefit 
of  another,  or  on  account  of  the  latter's  wrong,  he  may,  in  a  sub- 
sequent action,  recover  his  costs  and  expenses,  including  reasonable 
counsel  fees,  if  the  prior  litigation  was  a  natural  consequence  of  the 
•wrong,  and  necessary  to  determine  the  rights  of  the  parties.-"'     The 

200  Wynne  v.  Parsons,  57  Conn.  73,  17  Atl.  3G2;  Linsley  v.  Bushnell,  15 
€ouu.  225;  Bennett  v.  Gibbons,  55  Conn.  450,  452,  12  Atl.  99;  Mason  v. 
Hawes,  52  Conn.  12.  In  Noyes  v.  Ward,  19  Conn.  250,  where  a  second  trial 
became  necessary  in  an  action  for  assault  and  battery,  it  was  held  that  the 
•expenses  of  the  first  trial  might  be  considered.     See,  also,  Finney  v.  Smith, 

51  Ohio  St.  529;  Stevenson  v.  Morris,  37  Ohio  St.  10;  Peckham  Iron  Co.  v. 
Harper,  41  Ohio  St.  100;  Roberts  v.  Mason,  10  Ohio  St.  277;  Thompson  v. 
Powning,  15  Nev.  195;  Titus  v.  Corkins,  21  Kan.  722;  Marshall  v.  Betner,  17 
Ala.  832;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Allbvitton,  38  Miss.  242;  Taylor 
V    Morton,  61  Miss.  24;    Landa  v.  Obert.  45  Tex.  539. 

201  Howell  V.  Scoggins,  48  Cal.  355;  Falk  v.  Waterman,  49  Cal.  224;  Kelly 
V.  Rogers,  21  Minn.  146;  Halstead  v.  Nelson,  24  Hun,  395;  Welch  v.  Railroad 
Co.,  12  Rich.  Law,  290;  Hoadley  v.  Watson,  45  Vt.  289;  Earl  v.  Tupper, 
Id.  275. 

202  Day  V.  Woodworth,  13  How.  363,  371.  Approved  in  Oelrichs  v.  Spain, 
15  Wall.  211.     See,  also,  Fairbanks  v.  Witter,  18  Wis.  287,  290. 

-03  Baxendale  v.  Railway  Co.,  L.  R.  10  Exch.  35;  Dubois  v.  Hermance,  50 
N.  y.  G73;  Hughes  v.  Graeme,  33  Law  J.  Q.  B.  335;  Inhabitants  of  Westfield 
V.  Mayo,  122  Mass.  100.  Where  the  litigation  was  unnecessary,  neither  costs 
nor  counsel  fees  can  be  recovered.  Lunt  v.  Wrenn,  113  111.  168.  In  an  ac- 
tion on  an  injunction  or  attachment  bond,  counsel  fees  in  obtaining  a  dissolu- 
tion of  the  injunction  or  attachment  may  be  recovered.     Holmes  v.  Weaver, 

52  Ala.  510;  Boiling  v.  Tate,  65  Ala.  417;  Graves  v.  Moore,  58  Cal.  435;  Wit- 
tich  V.  O'Neal,  22  Fla.  592;  Cummings  v.  Burleson,  78  111.  281;  Morris  v. 
Price,  2  Blackf.  457;  Raupman  v.  City  of  Evansvillo,  44  Ind.  392;  Swan  v. 
Tiinmons,  81  Ind.  243;  Sanford  v.  Willotts,  29  Kan.  (!47;  Tyler  v.  SalTord, 
SI  Kan.  608,  3  Pac.  333;  Trapnall  v.  McAfee,  3  Mete.  (Ky.)  34;  Littlejohn  v. 
AVilcox,  2  La.  Ann.  620;  Swift  v.  Plessner,  39  Mich.  178;  Miles  v.  Edwards, 
6  Mont.  180,  9  Pac.  814;  Raymond  Bros.  v.  Green,  12  Neb.  215,  10  N.  W.  709; 
Brown  v.  Jones,  5  Nev.  374;  Corcoran  v.  .Tudson,  21  N.  Y.  10(5;  .Andrews  v, 
^ncnville  Woolen  Co.,  50  N.  Y.  282;    Rose  v.  Post.  .")(;  X.  Y.  60.".;    .\l<>\;indi'r  v. 


90  COMPENSATORY    DAMAGES.  (Ch.   3- 

rule  is  uot  univei'sal,  however.-"*  Where  plaintiff  was  successful 
in  the  prior  litigation,  it  is  sometimes  held  that  counsel  fees  can- 
not  be  recovered,  for  he  has  received  the  taxed  costs,  which  are  re- 
jrarded  in  the  eyes  of  the  law  as  full  indemnity.     But,  as  Mr.  Sedg- 

.Tacoby,  '23  Ohio  St.  358;  Lillie  v.  Lillie,  55  Vt.  470.  Contra,  Oliphint  v  Mans- 
lield,  30  Ark.  191;  Pattou  v.  Garrett,  37  Ark.  G05;  Wallace  v.  York,  45  Iowa, 
81;  Lowenstein  v.  Monroe,  55  Iowa,  82,  7  N.  W.  406.  In  Baggett  v.  Beard, 
43  Miss.  120,  the  expense  of  the  principal  suit  was  held  recoverable  in  an 
action  on  an  injunction  bond.  But  the  weight  of  authority  is  the  other  way. 
See  Frost  v.  Jordon,  37  Minn.  544,  36  N.  W.  713;  Jacobus  v.  Monongahela 
Nat.  Bank,  35  Fed.  395;  Randall  v.  Carpenter,  88  N.  Y.  293;  Alexander  v. 
Jacoby,  23  Ohio  St.  358;  Lillie  v.  Lillie,  55  Vt.  470;  Copeland  v.  Cunningham, 
63  Ala.  394;  Bustamente  v.  Stewart,  55  Cal.  115;  Vorse  v.  Phillips,  37  Iowa, 
428;  Brinker  v.  Leinkauflf,  04  Miss.  236,  1  South.  170.  In  an  action  for  breach 
of  covenants  of  seisin  or  warranty,  or  for  false  representations,  the  reason- 
able counsel  fees  in  litigation  in  which  one  engaged,  relying  on  the  covenant 
or  representation,  may  be  recovered  if  it  was  a  legitimate  consequence  of  the 
covenant  or  representation.  Sedg.  Dam.  356;  Levitzky  v.  Canning,  33  Cal. 
299;  Harding  v.  Larkin,  41  111.  413;  Kobertson  v.  Lemon,  2  Bush,  301;  Ky- 
erson  v.  Chapman,  66  Me.  557;  Allis  v.  Nininger,  25  Minn.  525;  Kennison  v. 
Taylor,  18  N.  H.  220;  Keeler  v.  Wood,  30  Vt.  242;  Smith  v.  Sprague,  40  Vt. 
43;  Dalton  v.  Bowker,  8  Nev.  190.  Contra.  Jeter  v.  Glenn,  9  Rich.  Law, 
374;  Clark  v.  Mumford,  62  Tex.  531.  In  Massachusetts,  it  has  been  held  that 
the  costs,  but  not  the  counsel  fees,  may  be  recovered.  See  Lefiingwell  v.  El- 
liott, 10  Pick.  204;  Reggie  v.  Braggiotti,  7  Cush.  166.  The  same  principles 
apply  in  actions  on  indemnity  bonds.  Hadsell  v.  Hancock,  3  Gray,  526;  Kan- 
sas City  Hotel  Co.  v.  Sauer,  05  Mo.  270;  Graves  v.  Moore.  58  Cal.  435.  But 
see  Russell  v.  Walker,  150  Mass.  351,  23  N.  E.  383,  and  McDaniel  v.  Crabtree, 
21  Ark.  431. 

When,  as  the  necessary  and  proximate  consequence  of  a  breach  of  contract, 
plaintiff  is  compelled  to  engage  in  litigation,  his  reasonable  expenses  may  be 
recovered.  Dubois  v.  Hermance,  56  N.  Y.  673;  New  Haven  &;  N.  Co.  v.  Hay- 
den,  117  Mass.  433;  Hagan  v.  Riley,  Vi  Gray,  515;  Pond  v.  Harris,  113  Mass. 
114;  Call  V.  Hagar,  69  Me.  521;  Shaw  v.  Mayor,  etc.,  of  Macon,  19  Ga.  468; 
Ottumwa  V.  Parks,  43  Iowa,  119;  Henderson  v.  Squire,  L.  R.  4  Q.  B.  170. 
•'If  a  party  is  obliged  to  defend  against  the  act  of  another,  against  whom  he 
has  a  remedy  over,  and  defends  solely  and  exclusively  the  act  of  such  other 
party,  and  is  compelled  to  defend  no  misfeasance  of  his  own,  he  may  notify 
such  party  of  the  pendency  of  the  suit,  and  may  call  upon  him  to  defend  it. 
If  he  fails  to  defend,  then,  if  liable  over,  he  is  liable,  not  only  for  the  amount 
of  damages  recovered,  but  for  all  reasonable  and  necessary  expenses  incurred 

204Leffingwell  v.  Elliott,  10  Pick.  204;  Reggio  v.  Braggiotti,  7  Cush.  100. 


§§  37-38)       ELEMENTS  OF  COMPENSATION PAIN  AND  INCONVENIENCE.       91 

wick  has  said/"'  in  speaking  of  the  legal  fiction  that  the  taxable 
costs  are  a  full  indemnity  for  the  expenses  of  litigation,  it  is  very 
doubtful  if  the  rule  ever  applies  except  as  between  the  parties  to 
the  suit,  for  the  reason  of  the  rule  is  that  the  taxable  costs  are  an 
arbitrary  sum  awarded  by  law  to  be  paid  by  the  losing  to  the  pre- 
vailing party. 

SAME— PHYSICAL  PAIN  AND  INCONVENIENCE. 

37.  Compensation  may  al-ways  be  recovered  for  physical 

pain  w^hich  is  the  proximate   and  certain   result  of 
a  ■wrong. 

38.  Inconvenience  amounting  to  physical  discomfort  may 

be  compensated. 

Physical  pain  or  inconvenience  which  is  the  proximate  and  cer- 
tain result  of  a  wrong  is  always  an  element  of  compensation.^"® 

in  such  defense."  Inhabitants  of  Westfield  v.  Mayo,  122  Mass.  100.  See. 
also,  Ottumwa  v.  Parks,  43  Iowa,  119;  Griffin  v.  Brown,  2  Pick.  304;  Osborne 
&  Co.  V.  Ehrhard,  37  Kan.  413,  15  Pac.  590;  Hynes  v.  Patterson,  95  N.  Y.  1. 
Notice  of  suit  is  essential  to  liability.  Lowell  v.  Boston  &  L.  R.  Co.,  23  Pick. 
24;  Chase  v.  Bennett,  59  N.  H.  394.  In  an  action  for  malicious  prosecution, 
the  expenses  of  the  malicious  proceeding  may  be  recovered.  Lawrence  v. 
Hagerman,  56  111.  68;  Krug  v.  Ward,  77  111.  G03;  Ziegler  v.  Powell,  54  Ind. 
173;  McCardle  v.  McGinley,  86  lud.  53S;  Lytton  v.  Baird.  95  Ind.  349;  Greg- 
ory V.  Chambers,  78  Mo.  294;  Magmer  v,  Renk,  65  Wis.  364,  27  N.  W.  26.  But 
the  expense  of  setting  stock  aside  as  exempt  is  not  recoverable  as  damages 
in  an  action  for  maliciously  suing  out  a  distress  warrant.  Sturgls  v.  Frost, 
56  Ga.  ISS.  The  expense  of  procuring  a  discharge  from  imprisonment  may 
be  recovered  in  an  action  for  false  imprisonment.  Bonosteel  v.  Bonesteel. 
30  Wis.  511;  Parsons  v.  Harper,  16  Grat.  64;  Blythe  v.  Tompkins.  2  Abb. 
Prac.  468;  Foxall  v.  Barnett,  2  El.  &  Bl.  928;  Pritchot  v.  Boevey,  1  Cronip. 
&  M.  775.     Contra.  Bradlaugh  v.  Edwards,  11  C.  B.  (N.  S.)  377. 

205  Sedg.  Dam.  §  '.'A'.). 

200  Pierce  v.  Millay.  44  111.  189;  Indianapolis  &  St.  L.  K.  Co.  v.  Stables,  62 
111.  313;  City  of  Chicago  v.  Jones,  66  111.  349;  City  of  Chicago  v.  Langlass. 
Id.  361;  City  of  Chicago  v.  Elzeman.  71  111.  131;  Chicago  &  E.  R.  Co.  v.  Hol- 
land, 122  111.  461,  13  N.  E.  145;  McKinley  v.  Railroad  Co.,  44  Iowa,  314;  Staf- 
ford V.  City  of  Oskaloosa.  64  Iowa,  2.51,  20  N.  W.  174;  Fleming  v.  Town  of 
Shenandoah,  71  Iowa.  456.  ."/J  N.  W.  456;  Ross  v.  Loggctt,  61  Mich.  1 15.  2S  N. 
W.  695;    Stephens  v.  Railroad  Co..  96  Mo.  207,  9  S.   W.  5.S9;    Itldcnh.xir  v. 


92  COMPENSATORY    DAMAGKS.  (Ch.   3 

The  amount  of  damages  awarded  is  necessanly  left  to  the  sound 
discretion  of  the  jury,  for  there  is  no  arithmetical  rule  by  whicli  tlie 
equivalent  of  such  injuries  in  money  can  be  estimated.  Damages 
cannot  be  recovered  for  inconvenience  or  annoyance,^"^  unless  it 
amounts  to  physical  discomfort.-"®  "The  injury  must  be  physical, 
as  distinguished  from  one  purely  imaginative.  It  must  be  some- 
thing that  produces  real  discomfort  or  annoyance  through  the 
medium  of  the  senses,  not  from  delicacy  of  taste  or  refined  fancy."  -°^ 

SAME— MENTAL  SUFFERING. 

39.  Mental  suffering  standing  alone  will  not  support  an 
action  where  damages  is  the  gist  of  the  -wrong. 

AO.  Mental  suffering  which  is  the  proximate  and  certain 
result  of  conduct  actionable  per  se,  whether  a  tort 
or  breach  of  contract,  may  be  compensated. 
EXCEPTION — In  many  states  compensation  cannot  be 
recovered  for  mental  suffering  resulting  from  a 
breach  of  contract. 

Mental  Suffering  as  the  Basis  of  a  Cause  of  Action. 

It  has  been  doubted  whether  compensation  can  ever  be  recovered 
•for  mental  suffering  as  distinguished  from  physical   suffering.^ ^° 

Railway  Co.,  102  Mo.  270,  13  S.  W.  8S9,  and  14  S.  W.  700;  Pennsylvania  &  O. 
Canal  Co.  v.  Graham,  63  Pa.  St.  290;  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Frautz, 
127  Pa.  St.  297,  18  Atl.  22;    Goodno  v.  Oshkosh,  28  Wis.  300. 

207  Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408;  Hunt  v.  D'Orval,  Dud.  (S.  C.) 
180;  Connell  v.  Telegraph  Co.,  116  Mo.  34,  22  S.  W.  345;  Russell  v.  Tele- 
graph Co.,  3  Dak.  315,  19  N.  W.  408;  Wilcox  v.  Railroad  Co.,  3  C.  C.  A.  73, 
52  Fed.  264;    Yoakum  v.  Dunn,  1  Tex.  Civ.  App.  524,  21  S.  W.  411. 

20  8  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364;  Southern  Kan.  Ry.  Co.  v. 
Rice,  38  Kan.  398,  16  Pac.  817;  Emery  v.  City  of  Lowell,  309  Mass.  197;  Ross 
V.  Leggett.  61  Mich.  445,  28  N.  W.  695;  Luse  v.  Jones,  39  N.  J.  Law,  707; 
Ives  v.  Humphreys,  1  E.  D.  Smith,  196;  Scott  Tp.  v.  Montgomery,  95  Pa.  St. 
444.     But  see  Walsh  v.  Railway  Co.,  42  Wis.  23. 

200  Westcott  V.  Middleton,  43  N.  J.  Eq.  478,  486,  11  Atl.  490;  Id.,  44  N.  J. 
Eq.  297,  18  Atl.  80.  And  see  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135,  17 
Atl.  1052. 

210  "Mental  suflfering,  as  a  distinct  element  of  damage  in  addition  to  bodily 
suffering,  has  been  held  not  a  subject  for  compensation."     Sedg.  Dam.  §  44; 


§§  39-40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  93- 

The  reason  usually  given  is  that  such  suffering,  as  a  ground  for  the 
recovery  of  damages,  is  vague,  sentimental,  or  metaphysical;  that 
the  suffering  of  one  person  is  no  criterion  by  which  to  estimate  the 
sufferings  of  another,  differently  constituted,  and  that  it  is  too  dif- 
ficult to  be  weighed  and  assessed  on  the  basis  of  a  pecuniary  com- 
oensation.^^^  But  mental  suffering  is  no  more  vague,  fluctuating,, 
or  difificult  to  estimate  than  physical  suffering  which  is  always  a  sub- 
ject for  compensation;  nor  is  it  anj'  the  less  real.  "Wounding  a 
man's  feelings  is  as  much  actual  damage  as  breaking  his  limbs. 
The  difference  is  that  one  is  internal,  and  the  other  external;  one 
mental,  the  other  ph3-sical.  In  either  case  the  damage  is  not  meas- 
urable with  exactness.  There  can  be  a  closer  approximation  in  es- 
timating the  damage  to  a  limb  than  to  the  feelings ;  but,  at  the  last, 
the  amount  is  indefinite."^ ^^  Where  the  law  recognizes  a  right  to 
compensation  for  an  injury,  difficulty  in  estimating  the  extent  of  the 
injury  has  never  been  regarded  as  a  ground  for  withholding  all 
damages.^^^  The  law  solves  such  difficulties  by  leaving  them  to 
the  sound  discretion  of  a  jury.-^*  The  real  reason  for  refusing  com- 
pensation for  purely  mental  sufferings  is  that  mental  tranquillity 
is  not  a  right  recognized  and  protected  by  law.^^^  The  law  dores 
not  provide  a  remedy  for  every  possible  injury  which  a  man  may 
suffer.  It  protects  his  person,  his  propert}',  and  his  reputation,  but 
his  emotions  are  beyond  the  domain  of  rights  protected  by  law. 
An  act  causing  mental  suffering  alone  is  therefore  not  a  tort,  for 
no  legal  right  is  invaded.  Where  the  negligent  or  wrongful  act  of 
one  person  puts  another  in  a  position  of  peril,  and  thereby  causes 

Joch  V.  Dankwardt.  85  111.  331;  City  of  Salina  v.  Trosper,  27  Kan.  544;  John- 
son V.  Wells,  Fargo  &  Co.,  6  Nev.  224.  Contra,  see  Lunsford  v.  Dietrich,  86 
Ala.  250,  5  South.  461;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Sponier,  85  Ind.  165; 
Moyer  v.  Gordon,  113  Ind.  282,  14  N.  E.  476;  Parkhurst  v.  Masteller,  57  Iowa, 
474,  10  N.  W.  804;  Shepard  v.  Railway  Co.,  77  Iowa,  54,  41  N.  W.  564;  Porter 
V.  Railway  Co.,  71  Mo.  66.  And  see  Pennsylvania  R.  Co.  v.  Kelly,  31  Pa.  St. 
372;   Oakland  Ry.  Co.  v.  Fielding,  48  Pa.  St.  320. 

211  Wadsworth  v.  Telegraph  Co.,  86  Tenn.  721,  8  S.  W.  582. 

212  Head  v.  Railway  Co.,  79  Ga.  358,  7  S.  E.  217. 

213  Wadsworth  v.  Telegraph  Co.,  86  Tenn.  695.  711,  8  S.  W.  574. 

214  Young  V.  Telegraph  Co.,  107  N.  C.  370,  11  S.  E.  1044;    Lucas  v.  Flinn.  35 
Iowa,  9;    Ballou  v.  Farnum,  11  Allen,  73,  77,  78. 

21 B  See  ante,  c.  1. 


y4  COMPENSATORY    DAMAGES.  (Ch.   3 

fear  and  apprehension  in  the  niiud  of  the  hitter,  but  no  actual  harm 
results,  there  is  no  cause  of  action.-^"  Negligence  is  not  a  tori,  un- 
less it  results  in  damage  with  respect  to  a  right  protected  by  law. 
So,  also,  defamatory  words  are  not  actionabk^,  unless  followed  by 
damage,  actual  or  presumed.  Therefore,  if  the  words  are  not  ac- 
tionable per  se,  and  no  special  damage  is  proved,  the  mere  fact  that 
the  words  cause  mental  anguish  will  not  support  the  action.-^' 
Wherever  actual  damage  is  necessary  to  render  an  act  a  legal 
wrong, — that  is,  where  damages  are  the  gist  of  the  action, — proof 
of  mental  suffering  alone  will  not  support  a  recovery.* 

210  Canning  v.  Williamstown,  1  Gush.  451;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
McGinnis,  46  Kan.  109,  2G  Pac.  45^3;  Terre  Haute  &  I.  R.  Co.  v.  Bruulier,  128 
Ind.  542,  20  N.  E.  178;  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Burton  (Tex.  App.)  15 
S.  W.  197;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Trott,  8G  Tex.  412,  25  S.  W.  419;  Wy- 
man  v.  Leavitt,  71  Me.  227;  Ewing  v.  Railway  Co.,  147  Pa.  St.  40,  23  Atl.  340. 
Contra,  Yoakum  v.  Kroeger  (Tex.  Civ.  App.)  27  S.  W.  953.  Where,  however, 
the  fright  or  shock  causes  illness,  nervous  prostration,  or  any  other  physical  in- 
jury, the  original  fault  is  the  proximate  cause  of  the  injury;  and  compensa- 
tion may  be  recovered,  not  for  the  fright,  but  for  the  results  of  it.  Smith  v. 
Railway  Co.,  30  Minn.  1G9,  14  N.  W.  797;  Purcell  v.  Railway  Co..  48  Minn. 
134,  50  N.  W.  1034;  Mitchell  v.  Railway  Co.,  4  Misc.  Rep.  575,  25  N.  Y.  Supp. 
744;  Bell  v.  Railway  Co.,  26  L.  R.  Ir.  428,  disapproving  Victorian  Railways 
Commissioners  v.  Coultas,  13  App.  Cas.  222.  See,  also,  Fitzpatrick  v.  Railway 
Co.,  12  U.  C.  Q.  B.  645;  Oliver  v.  Town  of  La  Valle,  36  Wis.  592;  Bray  v. 
Latham,  81  Ga.  640,  8  S.  E.  64;  Lehman  v.  Railroad  Co.,  47  Hun.  355;  Yoa- 
kum V.  Kroeger  (Tex.  Civ.  App.)  27  S.  W.  953;  Warren  v.  Boston  &  M.  R. 
Co.,  163  Mass.  484,  40  N.  E.  895.  Where  the  fear  or  anxiety,  instead  of  caus- 
ing the  physical  injury,  accompanies  it,  as  a  concomitant  or  incident,  the  iii- 
jui-y  being  proved,  compensation  may  be  had  for  the  mental  suffering.  Tlu» 
physical  injury  supports  the  action.  Allen  v.  Railway  Co.  (Tex.  Civ.  App.)  27 
S.  W.  943;    Fell  v.  Railroad  Co..  44  Fed.  248. 

217  Lynch  v.  Knight,  9  H.  L.  Cas.  577,  598. 

*  In  an  action  for  injuring  plaintiff's  horse  in  a  brutal  manner,  accompany- 
ing the  act  with  malicious  insults,  plaintiff  is  entitled  to  damages  for  mental 
suffering.  Kimball  v.  Holmes.  60  N.  H.  163.  But  where  defendant  circulated 
reports  about  plaintiff  which  caused  him  mental  suffering,  but  were  not  oth- 
erwise actionable,  he  cannot  recover  for  mental  suffemg.  Terwilliger  v. 
Wands,  17  N.  Y.  54.  But,  if  the  words  had  been  actionable  per  se,  damages 
for  mental  suffering  could  have  been  recovered.  Adams  v.  Smith.  ."i8  111.  417. 
It  is  difficult  to  see  any  sound  reason  for  the  distinction. 


§§  39-40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  95 

Mental  Suffering  in  Actions  of  Tort. 

Compensation  for  mental  suffering  which  is  the  natural,  proxi- 
mate, and  certain  result  of  a  tort  may  be  recovered.^ ^*    While  com- 

2i8PERiiONAL  INJURY.  In  actions  for  personal  injuries,  the  damages 
sliould  include  an  allowance  for  mental  suffering  in  so  far  as  it  was  attend- 
ant on  tlie  physical  injury,  and  inseparably  connected  with  it,  or  a  necessary 
result  of  it.  Van  de  Venter  v.  Railway  Co.,  20  Fed.  32;  Anthony  v.  Railroad 
Co.,  27  Fed.  724;  Robertson  v.  Cornelson,  34  Fed.  716;  Carpenter  v.  Rail- 
road Co.,  39  Fed.  315;  The  Queen,  40  Fed.  004;  Saldana  v.  Railroad  Co.,  43 
Fed.  SG2;  Davidson  v.  Southern  Pac.  Co.,  44  Fed.  47(3;  Ware  v.  Water  Co., 
1  Dill.  405,  Fed.  Cas.  No.  17,172;  Drinkwater  v.  Diusmore,  16  Hun,  250;  Ran- 
som V.  Railroad  Co.,  15  N.  Y.  415;  Curtis  v.  Railroad  Co.,  18  N.  Y.  534;  Walker 
V.  Railroad  Co.,  03  Barb.  260;  Demann  v.  Railroad  Co.,  10  Misc.  Rep.  191,  30 
N.  Y.  ttupy.  920;  Indianapolis  &  Ht.  L.  R.  Co.  v.  Stables,  02  111.  313;  Toledo, 
W.  &  W.  R.  Co.  V.  Baddeley,  54  111.  19;  Peoria  Bridge  Ass'n  v.  Loomis,  20 
111.  235;  Hannibal  &,  St.  J.  R.  Co.  v.  Martin,  111  111.  219;  City  of  Chicago  v. 
McLean,  133  111.  148,  24  N.  E.  527;  Central  Ry.  Co.  v.  Serf  ass,  153  111.  379,  39 
N.  E.  119;  Wabash  &  W.  R.  Co.  v.  Morgan,  132  Ind.  430,  31  N.  E.  661,  and  32 
N.  E.  85;  Town  of  Nappanee  v.  Ruckman,  7  Ind.  App.  361,  34  N.  E.  609; 
Muldowney  v.  Railroad  Co.,  36  Iowa,  462;  Ferguson  v.  Davis  Co.,  57  Iowa, 
<i01,  10  N.  W.  906;  Kendall  v.  City  of  Albia,  73  Iowa,  241,  34  N.  W.  833; 
Weber  v.  City  of  Creston,  75  Iowa,  10,  39  N.  W.  120;  Fleming  v.  Town  of 
Shenandoah,  71  Iowa,  450,  32  N.  W.  450;  Porter  v.  Railroad  Co.,  71  Mo.  00; 
Sidekum  v.  Railroad  Co.,  93  Mo.  400,  4  S.  W.  701;  liidenhour  v.  Railroad  Co., 
102  Mo.  270,  13  S.  W.  8S9,  and  14  S.  W.  700;  Houston  &  G.  N.  R.  Co.  v.  Ran- 
dall, 50  Tex.  254;  Gallagher  v.  Bowie,  00  Tex.  205,  17  S.  W.  407;  Texas  Mex. 
R.  Co.  V.  Douglas,  73  Tex.  325,  11  S.  W.  333;  Richmond  &  D.  R.  Co.  v.  Nor- 
ment,  84  Va.  167,  4  S.  E.  211;  Alexander  v.  Humber,  80  Ky.  505,  6  S.  W.  453; 
Scott  Tp.  V.  Montgomery,  95  Pa.  St.  444;  Stockton  v.  Frey,  4  Gill.  40C>;  Mc- 
Mahon  v.  Railroad  Co.,  39  Md.  438;  Giblin  v.  Mclntyre,  2  Utah,  384;  Larmon 
V.  District  of  Columbia,  5  Mackey,  330;  Fairchild  v.  Stage  Co.,  13  Cal.  599; 
Memphis  &  C.  R.  Co.  v.  Whitfield,  44  Miss.  466;  City  of  Salina  v.  Trosper,  27 
Kan.  544;  Montgomery  &  E.  R.  Co.  v.  Mallette,  92  Ala.  209,  9  South.  303; 
Kinney  v.  Folkerts,  84  Mich.  616,  48  N.  W.  283;  Lawrence  v.  Railroad  Co., 
29  Conn.  390;  McMillan  v.  Brick  Works,  6  Mo.  App.  434;  Wallace  v.  Rail- 
road Co.  (Super.  Del.)  18  Atl.  818;  Cooper  v.  Mullins,  30  Ga.  146.  Conuell 
V.  Telegraph  Co.,  116  Mo.  34,  22  S.  W.  345.  Mental  suffering  will  be  Inferred 
from  severe  physical  injury,  without  direct  proof  that  such  sulforings  ensued. 
Brown  v.  Sullivan,  71  Tex.  470,  10  S.  W.  288.  Mental  pain  is  not  a  distinct 
element  of  damage,  in  addition  to  or  apart  from  bodily  suffering.  .Johnson  v. 
Wells,  Fargo  &  Co.,  G  Nev.  224;  Joch  v.  nnnkwnifit,  8.")  111.  :'.:'.l;  Galveston, 
H.  &  S.  A.  R.  Co.  V.  Porfert,  72  Tex.  :'.ll,  lo  S.  W.  2(i7.  Iiislruction.s  ap- 
proved.     See  llaiiiford  v.  City  of  I\.;iii.s;is,  lo;)  Mo.  172,   !.">  S.  W.  7."):;:    ivciuion 


yC  COMPENSATORY    DAMAGES.  (Ch.    iJ 

pensation  for  mental  suffering  aloue  cannot  be  lecoveied,  where 
the  same  act  that  causes  mental  suffering  also  injuivs  plaiuliff  iu 

V.  Gilmer,  131  U.  S.  22,  9  Wup.  Ct.  696.  Compeusatiou  for  sliock  to  tlie  feel- 
iugs  attendant  on  personal  injury  may  be  recovered.  Seger  v.  Town  of  Barli- 
liamsted,  22  Conn.  290;    Masters  v.  Town  of  Warren,  27  Coun.  29;j. 

ASSAULT  AND  BATTERY.  In  a  civil  action  for  assault  and  battery,  com- 
pousation  may  be  recovered  for  mental  suffering,  wounded  feelings,  dishonor, 
indignity,  or  disgrace.  Boyle  v.  Case,  18  Fed.  8S0,  9  Sawy.  I^Sti;  Scbelter  v. 
York,  Crabbe,  449,  Fed.  Cas.  No.  12,446;  West  v.  Forrest,  22  Mo.  344;  Slater 
r.  Kink,  IS  III.  527;  Gaither  v.  Blowers,  11  Md.  536;  Fay  v.  Swan,  44  Mich. 
544,  7  N.  W.  215;  Sloan  v.  Edwards,  61  Md.  89;  Grouan  v.  Kukkuek,  59  Iowa, 
IS,  12  N.  W.  748;  Lucas  v.  Flinn,  35  Iowa,  9;  Root  v.  Sturdivant,  70  Iowa, 
55,  29  N.  W.  802;  Corcoran  v.  Harran,  55  Wis.  120,  12  N.  W,  468;  Barnes 
V.  Martin,  15  Wis.  240;  Barbee  v.  Reese,  60  Miss.  906;  Ward  v.  Black- 
wood, 4S  Ark.  396,  3  S.  W.  624;  Morgan  v.  Curley,  142  Mass.  107,  7  N. 
E.  726;  Smith  v.  Holcomb,  99  Mass.  552;  Tatnall  v.  Courtney,  6  Houst. 
434;  Smith  v.  Overby,  30  Ga.  241;  Nossaman  v.  Rickert,  18  Ind.  350; 
Cox  V.  Vanderkleed,  21  Ind.  164;  AVadsworth  v.  Treat,  43  Me.  163;  Beck 
v.  Thompson,  31  W.  Va.  459,  4  S.  E.  447;  Lunsford  v.  Walker,  93  Ala. 
36,  8  South.  386;  Taber  v.  Hutson,  5  Ind.  322;  Craker  v.  Railway  Co.,  36 
Wis.  657;  Mclntyre  v.  Gibbn,  131  U.  S.  174,  Append.;  Hawes  v.  Knowles, 
114  Mass.  518;    Townsend  v.  Briggs  (Cal.)  32  Pac.  307. 

INDECENT  ASSAULT.  The  damages  recoverable  for  an  indecent  assault 
upon  a  woman  include  compensation  for  plaintiff's  shock,  fright,  outraged  feel- 
ings, anguish  of  mind,  shame  and  humiliation,  and  loss  of  honor  or  good  name. 
Wolf  V.  Trinkle,  103  Md.  355,  3  N.  E.  110;  Fay  v.  Swan,  44  Mich.  544,  7  N. 
W.  215;  Alexander  v.  Blodgett,  44  VL  476;  Ford  v.  Jones,  62  Barb.  4S4; 
Newell  V.  Whitcher,  53  Vt.  589. 

INJURY  TO  CHILD— RECOVERY  BY  PARENT.  In  an  action  by  a  father 
for  an  injury  to  his  child,  plaintiff,  may  recover  for  his  own  mental  suffering, 
but  not  for  those  of  the  child.  Durkee  v.  Railroad  Co.,  56  Cal.  388;  Trimble 
V.  Spiller,  7  T.  B.  Mon.  394.  Contra,  Flemington  v.  Smithers,  2  Car.  &  P.  292. 
The  cases  of  Pennsylvania  R.  Co.  v.  Kelly,  31  Pa.  St.  372,  and  Oakland  R. 
Co.  V.  Fielding,  48  Pa.  St.  320,  apparently  holding  the  contrary,  proceed  on  the 
theory  that  mental  suffering  can  never  be  compensated.  Black  v.  Railroad 
Co.,  10  La.  Ann.  33,  and  Whitney  v.  Hitchcock,  4  Denio,  461,  went  off  on  the 
notion  that  such  damages  were  exemplary. 

CIVIL  DAMAGE  LAWS.  The  statutes  giving  a  right  of  action  for  inju- 
ries caused  by  the  unlawful  sale  of  intoxicating  liquor  usually  give  redress 
only  for  injury  to  person,  property,  or  means  of  support,  and  therefore  mental 
suffering  alone  will  not  support  the  action.  Black.  Intox.  Liq.  §  309;  Mulford 
V.  Clewell.  21  Ohio  St.  191;  Koerner  v.  Oberly,  56  Ind.  284;  Brantigam  v. 
While,  73  111.  561;  Freese  v.  Tripp,  70  111.  496;  Flynn  v.  Fogarty,  106  111. 
263;    Kearney  v.  Fitzgerald,  43  Iowa,  580;    Jackson  v.  Noble,  54  Iowa,  641,  7 


§§  39-40)      ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  97 

respect  to  a  right  protected  by  law,  as  in  regard  to  his  person, 
property,  or  reputation,  the  law,  in  redressing  such  injury,  will 

N.  W.  88;  ^Yelcll  v.  Jugeuheimer,  5(3  Iowa,  11,  8  N.  W.  673;  Clinton  v.  Lan- 
ing,  61  Mich.  355,  28  X.  W.  125;  Jolinson  v.  Scliultz,  74  Mich.  75,  41  N.  W. 
865.  But  where  there  is  a  cause  of  action  falling  within  the  statute,  mental 
suffering  connected  therewith  may  be  taken  into  account.  Pegram  v.  Stortz, 
31  W.  Va.  220.  6  S.  E.  485;  Friend  v.  Dunks,  37  Mich.  25;  Ward  v.  Thomp- 
son, 48  Iowa.  588;    Peterson  v.  Knoble,  35  Wis.  80. 

TRESPASS  FOR  INJURIES  TO  REALTY  AND  PERSONALTY.  Mental 
suffering  is  not  usually  a  natural  or  a  proximate  consequence  of  a  trespass  or 
injury  to  property.  White  v.  Dresser,  135  Mass.  150.  In  forcible  entry  and  detain- 
er, damages  for  mental  suffering  cannot  be  recovered.  Anderson  v.  Taylor,  50 
Cal.  131.  AYhere  one  obtains  property  by  duress  of  threats,  mental  and  physical 
suffering  is  not  a  proximate  consequence.  Wulstein  v.  Mohlman  (Super.  Ct.) 
5  N.  Y.  Supp.  569.  But,  where  a  landlord  Avrongfully  evicted  a  tenant,  it  was 
held  that  the  latter  could  recover  for  mental  sutfering  at  having  his  family 
turned  into  the  street.  Moyer  v.  Gordon,  113  Md.  282,  14  N.  E.  476;  Fille- 
brown  v.  Hoar,  124  Mass.  580.  Cf.  Smith  v.  Grant,  56  Me.  255.  Damages  for 
mental  suffering  have  been  allowed  in  actions  for  taking  property  under  an  un- 
lawful search  warrant,  Melcher  v.  Scruggs,  72  Mo.  406;  for  suing  out  a  vexa- 
tious attachment,  City  Nat.  Bank  v.  Jeffries,  73  Ala.  183;  Byrne  v.  Gardner,  33 
La.  Ann.  6;  for  carrying  away  a  valuable  paper,  Bonelli  v.  Bowen,  70  Miss.  142. 
11  South.  791;  and  for  beating  plaintiff's  horse,  Kimball  v.  Holmes,  60  N.  H.  163. 
A  physician  has  been  held  liable  for  mental  suffering  and  shame  caused  by  his 
taking  an  unprofessional,  unmarried  man  with  him  to  attend  a  confinement 
case.     De  May  v.  Roberts,  46  Mich.  160,  9  N.  W.  146. 

EJECTION  OF  PASSENGER  BY  CARRIER.  The  wrongful  ejection  of  a 
passenger  from  a  public  conveyance  is  not  only  a  breach  of  contract,  but  is 
al.so  a  tort.  Hence,  compensation  for  the  humiliation,  insult,  and  indignity  put 
upon  him  may  be  recovered.  Coppin  v.  Braithwaite.  8  Jur.  875;  (iallena  v. 
Railroad  Co.,  13  Fed.  116;  Murphy  v.  Railroad  Co.,  23  Fed.  637;  Quigley  v. 
Railroad  Co.,  5  Sawy.  107,  Fed.  Cas.  No.  11,510;  Id.,  11  Nev.  350;  McKinley 
V.  Railroad  Co.,  44  Iowa,  314;  Shepard  v.  Railroad  Co.,  77  Iowa,  54,  41  N.  W. 
564;  Carsten  v.  Railroad  Co.,  44  Minn.  454,  47  N.  W.  49;  Hoffman  v.  Railroad 
Co.,  45  Minn.  53,  47  N.  W.  312;  Serwe  v.  Railroad  Co.,  48  Minn.  78,  50  N.  W. 
1021;  Perry  v.  Railway  Co.,  153  Pa.  St.  236.  25  Atl.  772;  Baltimore  &  O.  K. 
Co.  v.  Bambrey  (Pa.  Sup.)  16  Atl.  67;  Hays  v.  Railroad  Co.,  46  Tex.  272; 
International  &  G.  N.  R.  Co.  v.  Smith  (Tex.  Sup.)  1  S.  W.  565;  Inter- 
national &  G.  N.  R.  Co.  V.  Wilkes.  68  Tex.  617,  5  S.  W.  491;  Pennsylvania  U. 
Co.  V.  Spicker,  105  Pa.  St.  142;  Taber  v.  Hutson,  5  Ind.  322;  Toledo,  W.  &  W. 
R.  Co.  V.  McDonongli.  .5:5  Iiul.  2S!i:  Lake  Erie  iV:  W.  R.  Co.  v.  Fix,  SS  liid.  381; 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Holdridge,  118  Ind.  281,  20  N.  E.  837;  Chicago  iV:  N, 
W.  U.  Co.  V.  Chlsliolm.  79  111.  .^84;  Chicago  &  N.  W.  K.  Co.  v.  Williama,  55 
111.  1S5;  Lake  Erie  &  \X.  R.  Co.  v.  Christison,  39  111.  A  pp.  495;  Ponusylvanln 

LAW  DAM. — 7 


98  COMPENSATORY    DAMAGES.  (Cll.   3 

also  award  to  plaintiff  a  suitable  coraponsatiou  for  his  mental  suf- 
fering, considered  as  an  inseparable  part  of  the  general  result  of 

U.  Co.  V.  Couuoll,  lliT  111.  411),  -20  X.  E.  SU;  Little  Kock  &  F.  S.  R.  Co.  v.  Doau, 
43  Ark.  529;  CJi'oigUi  K.  Co.  v.  Ilomer,  73  Ga.  251;  Head  v.  Railroad  Co.,  TO  Ga. 
358,  7  S.  E.  217;  Wilscy  v.  Railroad  Co.,  83  Ky.  511;  Louisville  &  N.  R.  Co. 
V.  Whitman.  79  Ala.  328;  Smith  v.  Railroad  Co.,  2;3  Ohio  St.  10;  Hagau  v.  Rail- 
road Co..  3  R.  I.  88;  Southern  Kansas  R.  Co.  v.  Rice,  38  Kan.  398,  10  Pac.  817; 
Goddard  v.  Kailway  Co.,  57  Ale.  202;  Allen  v.  Ferry  Co.,  46  N.  J.  Law,  198; 
Hamilton  v.  Railroad  Co.,  53  N.  Y.  25  A  person  seeking  passage  in  a  particu- 
lar car  on  a  railroad  train,  who  is  excluded  therefrom  on  account  of  her  color 
alone,  may  recover  for  the  indignity,  vexation,  and  disgrace  to  which  she  has 
been  subjected.  Chicago  &  N.  W.  R.  Co.  v.  Williams,  55  111.  185.  Where  the 
ejectiou  was  in  good  faith,  and  without  violence,  insult,  or  malice,  the  au- 
thorities are  divided  as  to  whether  compensation  can  be  recovered  for  mental 
suffering.  The  question  was  answered  in  the  negative  in  Dorrah  v.  Railroad 
Co.,  Go  Miss.  14,  3  South.  3G;  Illinois  Cent.  R.  Co.  v.  Sutton,  53  111.  397;  Gormau 
V.  Southern  Pac.  Co.,  97  Cal.  1,  31  Pac.  1112;  Finch  v.  Railroad  Co.,  47  Minn. 
30.  49  N.  W.  329;  Houston  City  St.  R.  Co.  v.  Jageman  (Tex.  Civ.  App.)  23  S. 
W.  628;  and  in  the  affirmative  by  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  3l^4: 
Pennsylvania  Co.  v.  Bray,  125  Ind.  229,  25  N.  E.  439;  Chicago  &  E.  I.  R.  Co. 
v.  Conley,  6  Ind.  App.  9,  32  N.  E.  96,  865;  Curtis  v.  Railroad  Co.,  87  Iowa,  622, 
54  N.  W.  339;  Willson  v.  Railroad  Co.,  5  Wash.  St.  621,  32  Pac.  468,  34  Pac.  146. 
Where  the  passenger  was  put  down  at  an  improper  place,  damages  may  be 
recovered  for  mental  suft',oring,  if  a  natural  and  proximate  consequence.  Stut/. 
v.  Railroad  Co.,  73  Wis.  147,  40  N.  W.  6.5.];  Missouri  Pac.  R.  Co.  v.  Kaiser,  82 
Tex.  144,  18  S.  W.  305. 

FALSE  IMPRISONMENT.  Compensalion  may  be  recovered  for  mental  suf- 
fering caused  by  false  impiisoumeut  .lay  v.  Almy,  1  Woodb.  &  M.  262,  Fed. 
Cas.  No.  7,236;  McCall  v.  McDowell,  Dcady,  233,  Fed.  Cas.  No.  8,673;  Catliu 
V.  Pond.  101  N.  Y.  649,  5  N.  E.  41;  Abrahams  v.  Cooper,  81  Pa.  St.  232;  Dug- 
gan  V.  Railroad  Co.,  159  Pa.  St.  248,  28  Atl.  182,  186;  Fenelon  v.  Butts,  53  Wis. 
344,  10  N.  W.  501;  Parsons  v.  Harper,  16  Grat.  64;  Stewart  v.  Maddox,  63  Md. 
51;  Hays  v.  Creary,  60  Tex.  445;  Taylor  v.  Davis  (Tex.  Sup.)  13  S.  W.  642; 
Coffin  V.  Varila  (Tex.  Civ.  App.)  27  S.  W.  956;  Sorenson  v.  Dundas,  50  Wis. 
335,  7  N.  W.  259;  Ross  v,  Leggett,  61  Mich.  445,  28  N.  W.  695;  Ball  v.  Horri- 
gan,  65  Hun,  621,  19  N.  Y.  Supp.  913;  Hewlett  v.  George.  68  Miss.  70.^.  '•• 
South.  885. 

MALICIOUS  PROSECUTION.  Mental  suffering  may  be  compensated  in  an 
action  for  malicious  prosecution.  Parkhurst  v.  Masteller.  57  Iowa,  474,  10  N. 
W.  864;  Vinal  v.  Core,  18  W.  Va.  1;  Fisher  v.  Hamilton.  49  Ind.  341;  Hogg  v. 
Pinckney.  16  S.  C.  387;  Coleman  v.  Allen.  79  Ga.  637.  5  S.  E.  204;  Lavender  v. 
Hudgens.  82  Ark.  763;  Yount  v.  Carney  (Iowa)  60  N.  W.  114;  Lunsford  v. 
Dietrich,  86  Ala.  2.50,  5  South.  461;  McWilliams  v.  H:oban,  42  Md.  .56;  Malone 
v.  Murphy,  2  Kan.  2.50;    Faguan  v.  Knox,  40  N.  Y.  Super.  Ct.  41;    Wheeler  v. 


§§  39—40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  99 

the  tort  against  him;  ^^®  that  is  to  say,  where  the  act  complained  of 
Avill  itself  support  the  action,  compensation  for  mental  suffering 

Hanson,  101  Mass.  370,  37  N.  E.  382;  Shannon  v.  Jones,  76  Tex.  141,  13  S.  W. 
477;  Willard  v.  Holmes,  Booth  &  Haydens,  2  Misc.  Rep.  303,  21  N.  Y.  Supp. 
99S. 

LIBEL  AND  SLANDER.  In  actions  for  defamation,  if  the  words  are  not 
actionable  per  se,  mental  suffering  alone  will  not  render  them  actionable.  But 
if  the  words  are  actionable  per  se,  or  if  other  special  damage  be  shown  to  sup- 
Ijort  the  action,  plaintiff's  mental  suffering  may  be  compensated.  Shattuc  v. 
McArthm-,  29  Fed.  136;  Terwilliger  v.  Wands,  17  N.  Y.  54;  Gomez  v.  Joyce 
(Super.  Ct.)  1  N.  Y.  Supp.  337;  Wilson  v.  Goit,  H  N  Y.  442;  Samuels  v.  Asso- 
ciatiou,  6  Hun,  5;  Hamilton  v.  Eno,  16  Hun,  599;  Ward  v.  Deane  (Sup.)  10  N. 
Y.  Supp.  421;  Lombard  v.  Lennox,  155  Mass.  70,  28  N.  E.  1125;  Mahoney  v. 
Belford,  132  Mass.  393;  Markham  v.  Russell,  12  Allen,  573;  Hastings  v.  Stet- 
son, 130  Mass.  76;  Chesley  v.  Tompsou,  137  Mass.  136;  Austin  v.  Wilson,  4 
Cush.  273;  Stallings  v.  Whittaker,  55  Ark.  494,  18  S.  W.  829;  Republican  Pub. 
€o.  V.  Mosman,  15  Colo.  399,  24  Pac.  1051;  Swift  v.  Dickerman,  31  Conn.  285; 
Marble  v.  Chapin,  132  Mass.  225;  McDougald  v.  Coward,  95  N.  C.  368;  Scripps 
V.  Reilly,  38  Mich.  10;  Newman  v.  Stein,  75  Mich.  402,  42  N.  W.  956;  Rea  v. 
Harrington,  58  Vt.  181,  2  Atl.  475;  McQueen  v.  Fulgham,  27  Tex.  463;  Zeliff 
T.  Jennings,  61  Tex.  458;  Adams  v.  Smith,  58  111.  419;  Miller  v.  Roy,  10  La. 
Ann.  231;  Dufort  v.  Abadie,  23  La.  Ann.  280;  Blumhardt  v.  Rohr,  70  Md.  328, 
17  Atl.  266;  Johnson  v.  Robertson,  8  Part.  (Ala.)  486.  Contra,  Prime  v.  East- 
wood, 45  Iowa,  640.  Such  damages  being  compensatory,  and  not  exemplary, 
malice  is  immaterial.  Warner  v.  Publishing  Co.,  132  N.  Y.  181,  30  N.  E.  393; 
Farrand  v.  Aldricb,  85  Mich.  593,  48  N.  W.  628;  Detroit  Daily  Post  Co.  v.  Mc- 
Arthur,  16  Mich.  447. 

SEDUCTION  AND  CRIMINAL  CO.n VEliSATION.  In  actions  by  a  parent 
for  seduction  of  his  daughter,  or  by  a  husband  for  criminal  conversation  with 
bis  wife,  the  fiction  of  loss  o^  service  supports  the  action,  but  damages  may  be 
given  for  the  mental  suffering  of  the  parent  or  husband.  Irwin  v.  Dearman, 
11  East,  23;  Bedford  v.  McK6wl,  3  Esp.  119;  Andrews  v.  Askey,  8  Car.  &  P.  7; 
Barbour  v.  Stephenson,  32  Fed.  66;  Johnston  v.  Disbrow,  47  Mich.  59,  10  N.  W. 
79;  Russell  v.  Chambers,  31  Minn.  54,  16  N.  W.  458;  Fox  v.  Stevens,  13  Minn. 
1272  (Gil.  252);  Herring  v.  Jester,  27  Houst.  66;  Emery  v.  Gowen,  4  Me.  33; 
Lnnt  V.  Philbrick,  59  N.  H.  59;  Phillips  v.  Hoyle,  4  Gray.  .568;  Hatch  v.  Fuller, 
131  Mass.  574;  Rollins  v.  Chalmers,  51  Vt.  592;  Hornketh  v.  Barr,  8  Sorg.  &  R. 

••!i9  Lynch  v.  Knight,  9  H.  L.  Cas.  577;  Trigg  v.  Railway  Co.,  74  Mo.  147; 
Burnett  v.  Telegraph  Co.,  39  Mo.  A))]).  599;  W.  U.  Tel.  Co.  v.  Rogers,  68  Miss. 
748,  9  South.  823;  Summerlield  v.  Telcgrar)h  Co.,  87  Wis.  1,  57  N.  W.  973.  A 
wife  may  recover  for  mental  anguisli,  mortification,  and  injured  feelings  cau.sed 
by  the  alienation  of  her  husband's  affections,  \vitli«»iil  sliDwiiig  actual  Inss  of 
support.    Rice  v.  Rice  (.Midi.)  C>'2  N.  W.  8.'!:'>. 


100  COMPENSATORY    DAMAGES.  (Cll.   3 

caused  thereby  may  be  included  in  the  damages  recoverable.  The 
plaintiff,  being  entitled  to  some  damage  by  reason  of  defendant's 
wrongful  act,  may  recover  all  the  damage  arising  from  it."*^     Thus,. 

M;  Plielin  v.  Keudordiue,  120  Pa.  St.  354;  Matheis  v.  Mazet,  1G4  Pa.  St.  oSO, 
oO  Atl.  434;  Kendrick  v.  MeCiary,  11  Ga.  GU3;  Felkuer  v.  Scarlet,  29  Md.  154, 
Taylor  v.  Sbelkett,  6U  Ind.  297;  Pruitt  v.  Cox,  21  Md.  15;  Clem  v.  Holmes,  33- 
Grat.  722;  Riddle  v.  McGinuis,  22  W.  Va.  253;  Wilhoit  v.  Hancock,  5  Biisli, 
5G7;  Leucker  v.  Steileii,  S9  111.  545;  Grable  v.  Margrave,  4  111.  372;  Ball  v. 
Bruce,  21  111.  161;  White  v.  Murtland,  71  111.  250;  Yundt  v.  llartrunft,  41  111. 
9;  Parker  v.  Monteitli,  7  Or.  277;  Ellington  v.  Ellington,  47  Miss.  329;  Ste- 
venson V.  Belknap,  6  Iowa,  97;  Morgan  v.  Ross,  74  Mo.  318;  Comer  v.  Taylor, 
82  Mo.  341;  Stout  v.  Prall,  1  N.  J.  Law,  79;  Coon  -  Moffitt,  3  N.  J.  Law,  1G9; 
Lavery  v.  Crooke,  52  Wis.  612,  9  N.  W.  599;  Lipe  v.  Eisenlerd,  32  N.  Y.  229; 
("lark  v.  Fitch,  2  Wend.  459;  Stiles  v.  Tilford,  10  Wend.  338;  2  Selw.  N.  P. 
1106;  Russell  v.  Chambers,  31  Minn.  54,  16  N.  W.  458;  Bigaouette  v.  Paulet, 
134  Mass.  123.  In  an  action' for  criminal  conversation,  plaintiff  need  not  show 
that  he  suffered  any  pecuniary  damages  through  the  loss  of  his  wife's  services. 
Long  V.  Booe  (Ala.)  17  South.  716.  For  instruction  as  to  damages  in  action 
for  seduction  of  wife,  see  Matheis  v.  Mazet,  164  Pa.  St.  580,  30  Atl.  434. 
Under  statutes  giving  a  woman  a  right  of  action  for  her  own  seduction,  she 
may  recover  for  mental  anguish.  Gray  v.  Bean,  27  Iowa,  221;  Hawn  v. 
Banghart,  76  Iowa,  683,  39  N.  W.  251;  Simons  v.  Busby,  119  Ind.  L3,  21  N.  E. 
451;  McCoy  v.  Trucks,  121  Ind.  292,  23  N.  E.  93;  Wilson  v.  Slepler,  86  Ind. 
275;  Breon  v.  Henkle,  14  Or.  494,  500,  13  Pac.  289. 

ABDUCTION  OF  CHILDREN.  Damages  for  mental  anguish  may  be  given. 
in  an  action  for  the  abduction  of  a  child.  Magee  v.  Holland,  27  N.  J.  Law, 
86;    Stowe  v.  Heywood,  7  Allen.  118. 

PROSPECTIVE  MENTAL  SUFFERING.  Damages  may  be  recovered  for 
prospective  mental  suffering.  Matteson  v.  Railroad  Co.,  62  Barb.  364;  Mem- 
phis &  C.  R.  Co.  V.  Whitfleld,  44  Miss.  466;  South  &  North  Alabama  R.  Co.  v. 
McLendon,  63  Ala.  266;  Campbell  v.  Car  Co.,  42  Fed.  484;  Stewart  v.  City  of 
Ripon,  38  Wis.  584;  Spicer  v.  Railroad  Co.,  29  Wis.  580;  Shiel  v.  City  of  Ap- 
pleton,  49  Wis.  125,  5  N.  W.  27;  Kendall  v.  City  of  Albia,  73  Iowa,  241,  34  N. 
W.  833.  In  personal  injury  cases,  damages  may  be  recovered  for  grief  and 
mortification  which  will  be  caused  in  the  future  by  any  serious  deformity  and 
disfigurement.  Heddles  v.  Railroad  Co.,  77  Wis.  228,  46  N.  W.  115;  Power  v. 
Harlow,  .57  Mich.  107.  23  N.  W.  0L»6;  Western  &  A.  R.  Co.  v.  Young,  81  Ga.  397, 
7  S.  E.  912;  Sherwood  v.  Railroad  Co..  82  Mich.  374,  46  N.  W.  773;  Schmitz  v. 
Railroad  Co..  119  Mo.  2.56,  24  S.  W.  472.  Contra,  Chicago,  B.  &  Q.  R.  Co.  v. 
Hines,  45  111.  App.  299;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Caulfield,  11  C.  C.  A. 
552,  63  Fed.  396.  Damages  for  dread  of  hydrophobia  may  be  recovered  by  one 
who  has  been  bitten  by  a  dog.  Godeau  v.  Blood.  .52  Vt.  251;  Warner  v.  Cham- 
berlain, 7  Houst.  IS,  30  Atl.  638. 

220  Chapman  v.  Tol(>graph  Co.  (Ky.)  13  S.  W.  880. 


§§  39-40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  101 

in  cases  of  assault  --^  or  false  imprisonment,---  where  plaintiff  was 
not  actually  touched,  substantial  damages  may  be  recovered,  ihougli 
the  entire  injury  suffered  is  necessarily  mental.  At  common  law 
there  was  no  property  in  a  corpse;  and  therefore  compensation 
could  not  be  recovered  for  mental  suffering  caused  by  indignities 
offered  to  the  remains  of  a  near  relative.-^^  But  where  defendant 
trespassed  on  plaintiff's  burial  lot,  and  disturbed  the  remains  of  his 
<.hild,  it  was  held  that  damages  for  mental  suffering  could  be  re- 
covered in  an  action  of  quare  clausum  fregit,-^*  because  the  trespass 
was  sufficient  to  support  the  action.  Compensation  for  mental  suf- 
fering is  often  refused  because  such  suffering  is  not  a  proximate 
result  of  the  injury.  Thus,  where  a  personal  injury  causes  a  mis- 
carriage, damages  for  mental  suffering  attending  the  miscarriage 
may  be  recovered,  but  grief  for  the  loss  of  the  child  is  too  remote.^-"' 
^'Any  mental  anguish  which  may  not  have  been  connected  with  the 
bodily  injury,  but  caused  by  some  conception  arising  from  a  different 
source,"  is  too  remote.  It  may  be  stated  as  a  general  rule,  in  ac- 
tions of  tort,  that,  wherever  a  wrong  is  committed  which  will  sup- 
port an  action  to  recover  some  damages,  compensation  for  mental 
suffering  may  also  be  recovered,  if  such  suffering  follows  as  a  nat- 
ural and  proximate  result. 

221  I.  de  S.  V.  W.  de  S.,  Ames,  Cas.  Torts,  1;  Morton  v.  Shoppee,  3  Car.  &  P. 
373;  Goddard  v.  Railway  Co.,  57  Me.  202;  Handy  v.  Jolinson,  5  Md.  450; 
Beach  v.  Hancock,  27  N.  H.  223;  Alexander  v.  Blodgett,  44  Vt.  476. 

222  Wood  V.  Lane,  6  Car.  &.  P.  774;  Peters  v.  Stan  way,  6  Car.  &  P.  737; 
Grainger  v.  Hill,  4  Bing.  N.  C.  212;  Fotheringham  v.  Express  Co.,  3G  Fed.  252; 
Courtoy  v.  Dozier,  20  Ga.  369;  Hawk  v.  Ridgway,  33  111.  473;  Gold  v.  Bissell, 
1  Wend.  210;   Mead  v.  Young.  2  Dev.  &  B.  521. 

2  23  2  Bl.  Comm.  429;  Foster  v.  Dodd,  8  Best  &  S.  842;  Pierce  v.  Proprietors 
of  Swan  Point  Cemetery,  10  R.  I.  227. 

224  Meagher  v.  Driscoll,  99  Mass.  281.  In  Larson  v.  Chase,  47  Minn.  .307,  50 
X.  W.  238,  the  court  broke  away  from  the  common-law  doctrine,  and  hold  that 
damages  for  mental  suffering  caused  by  the  mutilation  of  human  remains 
could  be  recovered,  regardless  of  whether  a  trespass  had  been  committed  or 
not.     See,  also,  Hale  v.  Bonner,  82  Tex.  33,  17  S.  W.  605. 

225  Bovee  v.  Town  of  Danville,  53  Vt.  183;  W.  U.  Tel.  Co.  v.  Cooper.  71  Tex. 
r.07.  9  R.  W.  598;  City  of  riiif-auo  v.  McLean,  133  111.  148,  24  N.  E.  527;  Tunnl- 
cliffe  V.  Railroad  Co.  (Mi.li.)  Gl  N.  "W.  11. 


102  COMPENSATORY    DAMAGES.  CCll.    3 

Mental  Suffering  in  Actions  of  Contract. 

Upon  the  question  as  to  whether  damages  are  recoverable  for 
mental  suffering  resulting  from  a  breach  of  contract,  the  authori- 
ties are  in  conflict;  but  it  is  believed  that,  on  principle,  such  dam- 
ages are  recoverable,  subject  to  the  general  limitation  that  dam- 
ages for  the  breach  of  a  contract  must  be  proximate,  certain,  and 
contemplated  at  the  time  the  contract  was  made.  Undoubtedly, 
the  great  majority  of  contracts  are  made  solely  to  secure  something 
having  a  definite  or  recognized  pecuniary  value;  and  in  such  cases 
mental  suffering  would  be  excluded  as  an  element  of  damage,  be- 
cause not  a  natural  or  contemplated  consequence  of  a  breach.^^' 
But  not  all  contracts  are  made  for  pecuniary  benefits;  and,  "where 
other  than  pecuniary  benefits  are  contracted  for,  other  than  pe- 
cuniary standards  will  be  applied  to  the  ascertainment  of  damages 
flowing  from  the  breach."^^^  Thus,  the  breach  of  a  promise  of  mar- 
riage has  always  been  regarded  as  an  exception,  and  damages  for 
mental  suffering  allowed.-^"     For  breach  of  an  undertaker's  con- 

228  In  the  following  cases  mental  suffering  has  been  held  too  remote  or  unex- 
pected to  be  compensated.  Beasley  v.  Telegraph  Co.,  39  Md.  181;  W.  U. 
Tel.  Co.  v.  Wingate,  6  Tex.  Civ.  App.  'SM,  25  S.  W.  439;  Same  v.  Stephens,  2 
Tex.  Civ.  App.  129,  21  S.  W.  148;  Gulf,  C.  &  S.  F.  K.  Co.  v.  Hurley,  74  Tex. 
.-)93,  12  S.  W.  226;  W.  U.  Tel.  Co.  v.  Linn  (Tex.  Civ.  App.)  23  S.  W.  895;  Id., 
87  Tex.  7,  26  S.  W.  490;  Same  v.  Motley  (Tex.  Sup.)  27  S.  W.  52;  Same  v. 
Stone  (Tex.  Civ.  App.)  27  S.  W.  144;  Same  v.  Andrews,  lo  Tex.  305,  14  S.  W. 
(341;  Wells,  Fargo  &  Co.  Exp.  v.  Fuller,  4  Tex.  Civ.  App.  213,  23  S.  W.  412; 
Nichols  V.  Eddy  (Tex.  Civ.  App.)  24  S.  W.  316;  W.  U.  Tel.  Co.  v.  Carter,  85  Tex. 
580,  22  S.  W.  961;  Ikard  v.  Telegraph  Co.  (Tex.  Civ.  App.)  22  S.  W.  534;  Pull- 
man Palace  Car  Co.  v.  Fowler,  27  S.  W.  2GS;  Pullman  Co.  v.  McDonald,  2 
Tex.  Civ.  App.  322,  21  S.  W.  945;  Thompson  v.  Telegraph  Co.,  107  N.  C.  449, 
12  S.  E.  427.  In  an  action  against  an  express  company  for  failure  to  deliver 
promptly  medicines  shipped  for  the  use  of  plaintiff's  sick  wife^  damages  for 
sympathetic  mental  suffering  of  the  husband  on  account  of  the  pain  of  his 
wife  are  too  remote.     Pacific  Exp.  Co.  v.  Black  (Tex.  Civ.  App.)  2i  S.  W.  830. 

229  Wadsworth  v.  Telegraph  Co.,  86  Tenn.  695,  703,  8  S.  W.  574. 

230  Collins  V.  Mack,  31  Ark.  684;  Sherman  v.  Dawson,  102  Mass.  395.  399; 
Reed  v.  Clark.  47  Cnl.  194;  Sauer  v.  Schulenberg,  33  Md.  2SS;  Wilds  v.  Bogan, 
57  Ind.  4.53;  Baldy  v.  Stratton,  11  Pa.  St.  316;  Chosley  v.  Chesley,  10  N.  H. 
327;  Wilbur  v.  .Johnson,  58  Mo.  600;  Bird  v.  Thompson,  96  Mo.  424,  9  S.  W. 
788;  Tobin  v.  Shaw,  45  Me.  331;  Johnson  V.  Jenkins,  24  N.  Y.  252;  Musselman 
V.  Barker,  26  Neb.  737.  42  N.  W.  759;  Thorn  v.  Knapp,  42  N.  Y.  474;  Kurtz  v. 
Frank,  70  Ind.  594;   Harrison  v.  Swift,  13  Allen,  144;   Giese  v.  Schultz.  .53  Wis. 


§§  39-40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  103 

tract  to  keep  safely  the  body  of  plaintiff's  deceased  child,  it  was 
held  that  damages  could  be  recovered  for  mental  anguish;-"^  and 
a  wife  has  been  allowed  to  recover  for  mental  suffering  caused  by 
the  negligence  of  a  railroad  company  in  delaying  her  husband's 
corpse.'^ - 

Actions  against  telegraph  companies  for  delay  or  failure  to  de- 
liver messages  constitute  by  far  the  most  numerous  class  of  cases 
in  which  this  question  has  been  raised.  In  the  case  of  So  Relle  v. 
Telegraph  Co.^^^  it  was  held  that  the  addressee  of  a  telegraphic 
message  could  recover,  as  compensatory  damages,  for  the  failure  to 
deliver  promptly  a  message  announcing  the  death  of  his  mother,  by 
reason  of  which  delay  he  was  prevented  from  attending  her  funeral. 
And  it  is  now^  well  established  in  Texas  that,  where  the  nature  of 
the  message  is  such  as  to  apprise  the  company  that  mental  suffering 
will  result  from  delay  or  failure  to  transmit  it,  compensation  for 
such  suffering  can  be  recovered  though  not  connected  with  any 
physical  injury  or  pecuniary  loss.^^*     The  "Texas"  doctrine  has  been 

402,  10  N.  W.  598;  Daggett  v.  Wallace,  75  Tex.  352,  13  S.  W.  49;  Vanderpool 
V.  Richardson,  52  Mich.  336,  17  N.  W.  936. 

231  Renihan  v.  Wright,  125  Ind.  536,  25  N.  E.  822. 

23  2  Hale  V.  Bonner,  82  Tex.  33,  17  S.  W.  605. 

23  3  55  Tex.  308. 

234  Laper  v.  Telegraph  Co.,  70  Tex.  689,  8  S.  W.  600;  W.  U.  Tel.  Co.  v. 
Broesche,  72  Tex.  654,  10  S.  W.  734;  Same  v.  Rosentreter,  80  Tex.  406,  16  S. 
W.  25;  Stuart  v.  Telegraph  Co.,  66  Tex.  580,  IS  S.  W.  351;  W.  U.  Tel.  Co.  v. 
Nations,  82  Tex.  539,  18  S.  W.  709;  Same  v.  Beringer,  84  Tex.  38,  19  S.  W.  336; 
Same  v.  Erwin  (Tex.  Sup.)  19  S.  W.  1002;  Same  v.  Evans,  1  Tex.  Civ.  App. 
297,  21  S.  W.  266;  Same  v.  Johnson  (Tex.  Civ.  App.)  28  S.  W.  124;  Same  v. 
May  (Tex.  Civ.  App.)  27  S.  W.  760;  Same  v.  De  .Tarles,  Id.  792.  Compensa- 
tion for  mental  suffering  may  be  recovered  for  breach  of  a  contract  to  transmit 
money  by  telegraph  where  defendant  had  notice  of  the  importance  of  prompt 
Iiorformance.  W.  U.  Tel.  Co.  v.  Simpson,  73  Tex.  422,  11  S.  W.  3S.".  As  to 
what  is  sufficient  to  charge  the  company  with  notice  that  mental  sufferiuu 
will  result  from  failure  to  promptly  deliver  the  message,  see  W.  U.  Tel.  Co. 
V.  Brown,  71  Tex.  723,  10  S.  W.  323.  overruled  in  Same  v.  Carter,  85  Tex.  580. 
22  S.  W.  961;  Same  v.  Moore,  76  Tex.  66,  12  S.  W.  949;  Same  v.  Adams.  75 
Tox.  5.31.  12  S.  W.  S.57:  Same  v.  Feegles,  75  Tex.  537.  12  S.  W.  860;  Same  v. 
Kirkpatrick,  76  Tex.  27,  13  S.  W.  70;  Potts  v.  Tel('grai)h  Co.,  82  Tex.  545.  IS 
S.  W.  604;  AV.  U.  Tel.  Co.  v.  Ward  (Tex.  .\pp.)  19  S.  W.  898;  Same  v.  CarltM-, 
2  Tex.  Civ.  App.  624.  21  S.  W.  f.ss:  Id.,  S.->  Te.\.  580,  22  S.  W.  OCl :  Ki>ese  v. 
Telegraph  Co.,  123  Ind.  291,  24  N.  K.  1(J3, 


10^  COMPEiNSATOKY    DAMAGES.  C^^'ll.   o 

adopted  and  followed  in  other  states;  among  thorn,  Alabama,  Ken- 
tucky, Indiana,  Iowa,  North  Carolina,  and  Tennessee.-^^  But  many 
states,  on  the  other  hand,  have  repudiated  it;-''®  and  the  federal 
courts  have  refused  to  follow  it.^^^  When  it  is  once  conceded  that 
an  allowance  for  mental  sulfering  is  proper  in  any  case,  it  is  dif- 
ficult to  see  what  there  is  in  the  nature  of  a  contract  to  prevent 
an  allowance  for  such  sufferings,  where  they  are  a  proximate  and 
contemplated  consequence  of  a  breach.  Even  a  technical  breach 
of  contract,  whether  followed  by  damage  or  not,  will  support  an 
action.  The  party  is  entitled  to  nominal  damages,  at  least.  This 
being  so,  it  follows,  as  in  cases  of  torts,  that  the  entire  damage,  in- 
cluding compensation  for  mental  suffering,  may  be  recovered.  If 
damages  for  mental  suffering  in  cases  of  tort  were  confined  to  cases 
where  mental  suffering  is  an  element  or  necessary  consequence  of 
physical  pain,  there  would  be  some  reason  in  denying  such  dam- 
ages in  an  action  of  contract.  But,  so  long  as  mental  suffering  is 
considered  a  proper  element  of  damage  in  actions  for  injuries  to 
property  or  reputation,  no  sound  reason  can  be  given  for  denying 
a  recovery  of  such  damages  in  actions  of  contract.-^* 

235  w.  U.  Tel.  Co.  V.  Henderson,  89  Ala.  510,  7  South.  419;  Same  v.  Cunning- 
ham, 99  Ala.  814,  14  South  579;  Chapman  v.  Telegraph  Co.,  90  Ky.  265,  13  S. 
W.  SSO;  Keese  v.  Telegraph  Co.,  123  Ind.  294,  24  N.  E.  163;  W.  U.  Tel.  Co. 
V.  Newhouse.  6  Ind.  App.  422,  33  X.  E.  SOO;  Same  v.  Cliue,  8  Ind.  App.  364,  3.^ 
N.  E.  564;  Mentzer  v.  Telegraph  Co.  (Iowa)  62  N.  W.  1;  Thompson  v.  Tele- 
graph Co.,  107  N.  C.  449.  12  S.  E.  427;  Wadsworth  v.  Telegraph  Co.,  &> 
Tenn.  695,  8  S.  W.  574. 

236  w.  U.  Tel.  Co.  V.  Rogers,  68  Miss.  748,  9  South.  823;  Russell  v.  Telegraph 
Co.,  3  Dak.  315,  19  N.  W.  408;  Council  v.  Telegraph  Co..  116  Mo.  34,  22  S.  W. 
345;  Newman  v.  Telegraph  Co.,  54  Mo.  App.  4;i4;  Kester  v.  Telegraph  Co., 
8  Ohio  Cir.  Ct.  R.  236;  Summerfield  v.  Telegraph  Co.,  87  Wis.  1,  57  N.  W.  973; 
West  V.  Telegraph  Co.,  39  Kan.  93,  17  Pac.  807;  Chapman  v.  Telegraph  Co.,  88 
Ga.  763.  15  S.  E.  901;  Francis  v.  Same,  58  Minn.  252,  .59  N.  W.  1078;  Inter- 
national Ocean  Tel.  Co.  v.  Saunders,  32  Fla.  434,  14  South.  148. 

237  Chase  v.  Telegraph  Co.,  44  Fed.  554;  Crawson  v.  Telegraph  Co.,  47  Fed. 
.544;  Tyler  v.  Telegraph  Co.,  54  Fed.  634;  Kester  v.  Same,  55  Fed.  003;  W. 
U.  Tel.  Co.  V.  Wood,  6  C.  C.  A.  432,  57  Fed.  471;  Gahan  v.  Telegraph  Co.,  59 
Fed.  433.     But  see  Beasley  v.  Telegraph  Co.,  39  Fed.  181. 

23  8  See  note  by  Wm.  L.  Clark,  Jr.,  in  W.  U.  Tel.  Co.  v.  Coggin,  15  C.  C.  A. 
235:  "Damages  in  Actions  against  Telegraph  Companies."  See,  also.  Lynch  v. 
Knight,  9  II.  L.  Cas.  577,  per  Lord  Wousleydale. 


§§  39-40)       ELEMENTS  OF  COMPENSATION MENTAL  SUFFERING.  105 

Kinds  of  Mental  Injury  Compensated. 

Mental  suffering  which  is  merely  sentimental  cannot  be  compen- 
sated. "For  mere  inconveniences,  such  as  annoyance,  loss  of  tem- 
per, or  ves:ation,  or  for  being  disappointed  in  a  particular  thing 
which  you  have  set  your  mind  upon,  without  real  physical  incon- 
venience resulting,  you  cannot  recover  damages.  That  is  purely 
sentimental."^^®  Compensation  may  be  recovered,  in  proper  cases, 
for  loss  of  mental  capacity;^*"  mental  suffering,  accompanying 
physical  pain;  -*^  mental  anxiety  and  distress;^*-  fright  caused  by 
apprehension  of  phj'sical  harm;^*^  loss  of  peace  of  mind  and  hap- 
piness;^** sense  of  indignity,  insult,  mortification,  or  wounded 
pride;  ^*^  sense  of  shame  and  humiliation;  -*®  or  a  blow  to  the  affec- 
tions.-*^ 

23  0  Hobbs  V.  Railway  Co.,  L.  R.  10  Q.  B.  111.  See,  also,  Walsh  v.  Railway 
€o.,  42  Wis.  23;  McAllen  v.  Telegrapb  Co.,  70  Tex.  243,  7  S.  W.  715.  "The 
plaintiff  is  entitled  to  recover  whatever  damages  naturally  result  from  the 
breach  of  contract,  but  not  damages  for  the  disappointment  of  mind  occa- 
sioned by  the  breach."     Hamlin  v.  Railway  Co.,  1  Hurl.  &  N.  408,  411. 

240  Ballou  v.  Farnum,  11  Allen,  73;  Wallace  v.  Railroad  Co.,  104  N.  C.  442,  10 
S.  E.  552. 

241  Boyle  V.  Case,  9  Sawy.  386,  389,  18  Fed.  880;  Carpenter  v.  Railroad  Co., 
39  Fed.  315;  South  &  N.  A.  R.  Co.  v.  MeLendon,  03  Ala.  266;  Fairchild  v. 
Stage  Co.,  13  Cal.  599;  Malone  v.  Hawley,  46  Cal.  409;  Pierce  v.  Millay,  44  111. 
189;  Indianapolis  &  St.  L.  R.  Co.  v.  Stables,  62  111.  313;  Sorgenfrei  v.  Schroeder, 
75  III.  397;  Hannibal  &  St.  J.  R.  Co.  v.  Martin,  111  111.  219;  Village  of  Sheri- 
dan V.  Hibbard,  119  111.  307,  9  N.  E.  901;  Muldowuey  v.  Railway  Co.,  36 
Iowa,  462;  McKinley  v.  Railroad  Co.,  44  Iowa,  314;  Kendall  v.  City  of  Albia, 
73  Iowa,  241,  34  N.  AV.  833;  Tyler  v.  Pomeroy,  8  Allen,  480;  Smith  v.  Hol- 
C'omb,  99  Mass.  552;  West  v.  Forrest,  22  Mo.  344;  Matteson  v.  Railroad  Co., 
02  Barb.  364;  Wallace  v.  Railroad  Co.,  104  N.  C.  442,  10  S.  E.  552;  Pennsyl- 
vania &  O.  Canal  Co.  v.  Graham,  63  Pa.  St.  290;  Scott  Tp.  v.  Montgomery,  95 
Pa.  St.  444;  Goodno  v.  City  of  Oshkosh,  28  Wis.  300:  Stewart  v.  City  of 
Ilipon,  38  Wis.  584. 

24  2  See,  generally,  ca.ses  cited  in  notes  supra;  also,  Godeau  v.  Blood.  52  Vt. 
251;   W.  U.  Tel.  Co.  v.  Cooper,  71  Tex.  507,  9  S.  W.  598. 

243  Louisville  &  N.  R.  Co.  v.  Whitman,  79  Ala.  328;  Stutz  v.  Railway  Co.,  73 
Wis.  147,  40  X.  W.  G53.  See,  also,  Kendall  v.  City  of  Albia,  73  Iowa,  241,  34 
N.  W.  833.  and  oases  cited  in  note  218,  supra. 

244  Cox  V.  Vandcrklcod,  21  Ind.  KH. 
240  See  note  245  on  following  page. 
240  See  note  246  on  following  page. 
247  See  note  247  on  following  p:ige. 


106  COMl'ENSATOKY    DAMAGES.  (^Ch.  3- 

Damages  for  Mental  Suffering  Compensatory,  not  Exemplary. 

Damages  for  mental  suffering,  when  allowed  at  all,  are  purely 
compensatory,  not  exemplary,  vindictive,  or  punitive.  They  are  de- 
signed to  indemnify  plaintiff  for  an  injury  suffered,  not  to  punish 
defendant  for  a  wrong  done.  Consequently,  the  motives  of  defend- 
ant, and  the  presense  or  absence  of  fraud,  malice,  gross  negligence,  or 
oppression,  are  immaterial.-''^  Thus,  it  was  held  in  an  action  for 
libel  that  plaintiff  was  entitled  to  damages  for  mental  suffering, 
though  the  jury  had  acquitted  defendants  of  malice.^*®  Exemplary 
damages  are  given  in  some  cases  where  mental  suffering  is  not 

2<5  Quiglej'  V.  Kaihoad  Co.,  5  Sawy.  107;  Louisville  &  N.  R.  Co.  v.  Whitman, 
79  Ala.  328;  Chicago  &  A.  K.  Co.  v.  Flagg,  43  111.  3G4;  Chicago  &  N.  W.  Ry.  Co. 
V.  Williams,  55  111.  1S5;  Adams  v.  Smith,  418;  Chicago  &  N,  W.  Ry.  Co.  v. 
Chisholm,  79  111.  584;  Pennsylvania  R.  Co.  v.  Connell,  112  111.  295;  Lake 
Erie  &  W.  Ry.  Co.  v.  Fix,  88  Ind.  381;  Shepard  v.  Railway  Co.,  77  Iowa,  54,^ 
41  X.  W.  564;  Smith  v.  Railway  Co.,  23  Ohio  St.  10;  Stutz  v.  Railway  Co., 
73  Wis.  147,  40  N.  W.  653;  Paine  v.  Railroad  Co.,  45  Iowa,  569;  Fitzgerald  v. 
Railroad  Co.,  50  Iowa,  79;  Batterson  v.  Railway,  49  Mich,  184,  13  N.  W.  508; 
Chicago  &.  A.  R.  Co.  v.  Flagg,  43  111.  364;  Carsten  v.  Railroad  Co.,  44  Minn. 
454,  47  N.  W.  49;  Parkhurst  v.  Masteller,  57  Iowa,  474,  10  N.  W.  864;  Ross  v. 
Leggett,  61  Mich.  445,  28  N.  W.  695;  Morgan  v.  Curley.  142  Mass.  107,  7  N.  B. 
726;  Hastings  v.  Stetson,  ViO  Mass.  76;  Mahoney  v.  Belford,  132  Mass.  393; 
Chesley  v.  Tompson,  137  Mass.  136;  Scripps  v.  Reilly,  38  Mich.  10;  Newman 
v.  Stein,  75  Mich.  402,  42  N.  W.  956;   Barnes  v.  Campbell,  60  N.  H.  27. 

248  As  in  action  for  seduction,  see  Barbour  v.  Stephenson,  32  Fed.  66;  Hatch 
V.  Fuller,  131  Mass.  574;  Russell  v.  Chambers,  31  .Minn!  .54,  16  N.  W.  458; 
Lunt  V.  Philbrick,  59  N.  H.  59;  Riddle  v.  McGinnis,  22  W.  Va.  253;  Simons  v. 
Busby,  119  Ind.  13,  21  N.  E.  451;  Breon  v.  Honkle,  14  Or.  494,  500,  13  Pac.  289; 
Giese  v.  Schultz,  53  Wis.  462,  10  N.  W.  598;  Id.,  65  Wis.  487,  27  N.  W.  353; 
or  for  indecent  assault,  see  Campbell  v.  Car  Co.,  42  Fed.  484;  Wolf  v.  Trinkle,. 
103  Ind.  355,  3  N.  E.  110;  Fay  v.  Swan,  44  Mich.  544,  7  N.  W.  215;  Ford  v. 
Jones,  62  Barb.  484;  or  for  the  wrongful  execution  of  a  search  warrant, 
Melcher  v.  Scruggs,  72  Mo.  407. 

24T  As  in  actions  for  breach  of  promise  of  marriage,  or  for  grief  caused  by  the 
failure  to  deliver  a  telegi-am. 

248  Smith  v.  Overby,  30  Ga.  241;  W.  U.  Tel.  Co.  v.  Berdine,  2  Tex.  Civ.  App. 
517,  21  S.  W.  982;  Dirmeyer  v.  O'Hern.  39  La.  Ann.  961,  3  South.  132;  Amer- 
ican Water-Works  Co.  v.  Dougherty,  37  Neb.  373,  55  N.  W.  1051;  Bixby  v. 
Dunlap,  56  N.  H.  456;  Thomp.  Electr.  §  382.  Though  exemplary  damages  can- 
not be  recovered  against  a  principal  for  the  act  of  his  agent,  damages  for 
mental  suffering  may.     Craker  v.  Railway  Co.,  36'Wis.  657. 

249  Ferrand  v.  Aldrich,  85  Mich.  593,  48  N.  W.  628.     And  see  Detroit  Daily 


§41)  AGGRAVATION    AND   MITIGATION    OF    DAMAGES.  107 

shown  to  have  resulted  from  the  act  complained  of;  and  often,  after 
a  full  allowance  has  been  made  for  mental  suffering,  the  circum- 
stances of  the  case  have  been  held  to  be  such  as  to  justify  a  further 
award  by  way  of  punishment  or  example. ^^"^ 

AGGRAVATION  AND  MITIGATION  OF  DAMAGES. 

41.  Where  damages  are  not  capable  of  exact  pecuniary 
measurement,  but  must  be  left  to  the  discretion  of 
a  jury,  evidence  of  the  circumstances  of  the  -wrong 
addressed  to  the  jury  for  the  purpose  of  influencing 
its  estimate  is  said  to  be  in  aggravation  or  mitiga- 
tion of  damages. 

The  terms  "aggravation"'  and  "mitigation"  of  damages  are  prop- 
erly used  only  where  the  damages  are  incapable  of  exact  pecuniary 
measurement.  Indemnity  is  the  aim  of  the  law.  Where  the  exact 
loss  is  definitely  known,  the  damages  cannot  be  mitigated  to  less 
than  full  and  complete  compensation;  nor  can  they  be  aggravated 
to  more  than  that  amount,  unless  the  circumstances  justify  the  im- 
position of  exemplary  damages.  In  other  words,  evidence  in  ag- 
gravation or  mitigation  of  damages  is  admissible  only  when  the  jury 
is  called  upon  to  assess  exemplary  damages,  or  to  estimate  damages 
for  nonpecuniary  injuries,  such  as  phj^sical  and  mental  suffering. 
For  example,  provocation  is  admissible,  in  an  action  for  assault,-^^ 
to  mitigate  exemplary  damages  or  damages  for  mental  suffering. 
Ordinarily,  evidence  in  aggravation  or  mitigation  of  damages  is  in- 
admissible in  actions  of  contract.  These  terms  are  sometimes  loose- 
ly used  to  mean  evidence  of  anything  that  tends  to  increase  or  de- 
crease the  damages,  but  the  proper  sense  is  that  indicated  above. 

Post  Co.  V,  McArtlmr,  16  Mich.  447.  Waruer  v.  Publishing  Co.,  132  N.  Y.. 
181,  30  N.  E.  393. 

250  See  post.  "Exemplary  Damages." 

281  Smith  V.  Holcomb,  99  Mass.  552.  Sec,  also,  Cuirier  v.  Swan.  G3  Me.  323. 
Provocation  cannot  mitigate  actual  damages  for  assault  and  battery.  Gold- 
smith's Adm'r  v.  Joy,  01  Vt.  4S8,  17  Atl.  1010.  It  is  proper  to  charge  that  the 
value  and  influence  of  an  example  set  by  awarding  exemplary  damages  for 
assault  and  battery  d«'p('nd  upon  the  social  standing  of  the  parties,  and  that 
the  jury  may  consider  that  circumstance  in  detcrniiuing  the  amount.      Id. 


lOS  COMPENSATORY    DAMAGES.  C^'h.   3 

It  is  for  the  jury  to  say  whether  the  matters  given  in  evidence 
aggravate  or  mitigate  the  damages.     It  is  not  a  question  of  law  for 
the  court.     Therefore,  the  court  should  not  charge  that  certain  mat- 
ters must  be  taken  in  mitigation  of  damages,  and  certain  other  mat- 
ters in  aggravation.*     However,  as  there  would  ordinarily  be  no 
doubt  as  to  the  effect  of  the  evidence,  such  an  instruction  would 
probably  be  harmless  error.     For  example,  in  an  action  for  slander 
it  would  not  ordinarily  be  reversible  error  to  charge  that  plaintiff's 
high  character  and  social  condition  should  be  considered  in  aggra- 
vation of  damages,  for  the  injury  to  such  a  one  would  ordinarily  be 
greater  than  the  one  who  had  no  character  to  lose.     Nevertheless, 
it  has  been  said  that,  if  plaintiff  has  a  well-established  character, 
there  is  less  likelihood  of  slander  hurting  him,  whereas,  if  he  was  a 
new  man  starting  in  the  effort  to  build  up  a  reputation,  the  same 
slander  might  cause  more  harm.     In  such  a  case,  therefore,  plain- 
tiff's established  character  may  be  considered  by  the  jury  in  mitiga- 
tion of  damages.^ '^     "The  question,  in  short,  is  one  as  to  the  ad- 
missibility and  effect  of  evidence,  and  not  strictly  one  as  to  the  legal 
measure  of  damages.     Nevertheless,  certain  rules  as  to  the  effect  of 
some  common  circumstances  (such  as  provocation,  good  faith,  the 
position  of  the  parties,  etc.)  in  aggravating  or  mitigating  the  dam- 
ages have  been   laid   down,   and  are  followed  in  ordinary  cases, 
though,  as  has  been  said,  they  should  not  be  regarded  as  conclusive. 
These  rules  are  applied  in  actions  of  breach  of  promise  of  marriage 
and  of  tort  for  personal  injury,  and  in  all  actions  where  exemplary 
damages  are  allowed."-'^^ 

*It  is  for  the  jury  to  say  whether  they  will  consider  seduction  as  an  aggra- 
vation of  damages  in  actions  for  breach  of  promise  of  marriage,  and  it  is  er- 
ror to  instruct  them  that  they  must  consider  it.  Osmun  v.  Winters,  25  Or. 
■260,  35  Pac.  250. 

252  Broughton  v.  McGrew,  39  Fed.  672. 

2  53  Sedg.  Dam.  §  52.  See,  generally,  as  to  aggravation  and  mitigation  of 
damages,  Grable  v.  Margrave,  3  Scam.  372  (seduction,  evidence  of  defendant's 
pecuniary  ability);  Storey  v.  Early,  86  111.  461  (libel,  defendant's  pecuniary 
ability);  Sayre  v.  Sayre,  25  N.  J.  Law,  235  (slander,  evidence  of  plaintiff's 
general  bad  character);  Duval  v.  Davey.  32  Ohio  St.  604  (slander  for  charging 
woman  with  unchastity,  evidence  of  reputation  for  chastity);  Mahoney  v. 
Belford,  132  Mass.  393  (slander,  evidence  of  reputation);  Palmer  v.  Crook,  7 
Gray,  418  (crim.  con.,  previous  state  of  wife's  feeling  towards  husband).     In 


§   41)  AGGRAVATION    AND    MITIGATION    OF    DAMAGES.  109 

Assault  and  Battery. 

The  current  language  of  the  cases  is  that  leave  and  license-'** 
and  provocation  ^^^  are  in  mitigation  of  damages.  It  would  seem, 
however,  more  accurate  to  say  that  no  facts  and  circumstances  can 
be  given  in  mitigation  of  actual  damages,  unless  they  furnish  a  legal 
justification,  and  are  therefore  a  defense  to  the  cause  of  action.-^' 
It  is  insisted  that  provocative  words  cannot  be  given  in  mitigation 
of  actual  or  compensatory  damages,  but  only  upon  the  question  of 
punitive  damages.- ^^ 

False  Imprisonment. 

One  who  has  been  wrongfully  restrained  of  liberty  of  locomotion 
may  recover  not  only  compensatory  damages,  but  wanton  disregard 
of  legal  right  will  entitle  him  to  punitive  damages,  as  in  an  action 
by  a  young  girl  for  humiliation,  insult,  and  wounded  sensibility 
consequent  upon  her  arrest." ^^     While  malice  or  want  of  proper 

an  action  by  a  wife  for  the  alienation  of  ber  busband's  affections,  the  ranii 
and  condition  of  defendant  cannot  be  considered,  in  assessing  damages.  Bailey 
V.  Bailey  (Iowa)  6r3  N.  W.  341.  In  an  action  by  a  husband  for  the  loss  of  his 
wife's  services  and  society  through  defendant's  negligence,  evidence  of  dis- 
turbed marital  relations,  when  restricted  to  mitigation  of  damages,  is  not  re- 
versible error.  Sullivan  v.  Railway  Co.,  162  Mass.  530,  39  N.  E.  1S5. 
2  54  Fredericksen  v.  Manufacturing  Co.,  38  Minn.  35G,  37  N.  W.  453. 

255  Fraser  v.  Berkeley,  7  Car.  &  P.  G21;  Avery  v.  Ray,  1  Mass.  12;  Kiflf  v. 
Youmans,  86  N.  Y.  324;  Burke  v.  Melvin.  45  Conn.  243.  But  not  after  cool- 
ing time.  Thrall  v.  Knapp,  17  Iowa,  468;  Goldsmith's  Adm'r  v.  Joy,  61  Vt. 
488,  17  Atl.  1010;  Boniuo  v.  Caledonio,  144  Mass.  299.  11  N.  E.  98;  Prindle 
V.  Haight,  83  Wis.  50,  52  N.  W.  1134. 

256  Birchard  v.  Booth,  4  Wis.  67.  76.  And  see  Corcoran  v.  Harrau,  55  A\'is. 
120,  12  X.  W.  468;  Robison  v.  Rupert,  23  Pa.  St.  523;  Jacobs  v.  Hoover,  9 
Minn.  204  (Gil.  189);  Watson  v.  Christie,  2  Bos.  &  P.  224;  Dresser  v,  Blair, 
28  Mich.  501;  Brown  v.  Swinoford.  44  Wis  282;  Prentiss  v.  Shaw,  56  yie. 
427;   Voltz  v.  Blackmar,  64  N.  Y.  440. 

257  Goldsmith's  Adm'r  v.  Joy,  61  Vt.  4S8.  17  Atl.  1010.  And  see  Caspar  v. 
Prosdame,  46  Jja.  Ann.  36,  14  South.  317;  Crosby  v.  Humphreys.  59  Miun.  92, 
60  N.  W.  843. 

258  Ball  V.  Horrigan,  65  Hun,  621,  19  N.  Y.  Supp.  913;  Ross  v.  Leggett,  61 
Mich.  445,  28  N.  W.  695;  Pearce  v.  Needham,  37  111.  App.  90;  Taylor  v. 
Coolidge,  64  Vt.  506,  24  Atl.  656;  Hewlett  v.  George.  68  Miss.  703,  9  South. 
885.  A  verdict  for  .$2,917  damnges  has  been  set  nside  as  excessive  for  three 
hours'  detention  in  a  lockup.  Woodward  v.  Gliddcu  .'^3  Minn.  lOS,  22  N.  W. 
IL'7.      And  a  vi-rdict  (>f  6  cents  for  dctciitioii  long  ciHiugh  to   walk  iicross  tlie 


110  COMPENSATORY    DAMAGES.  (Ch.   3 

cause  is  no  i)art  of  the  plaintiff's  case  in  an  action  for  false  impris- 
onment, proof  tli;ii  the  defendant  believed  himself  to  be  legally  right 
in  making  an  improper  arrest  will  mitigate  exemplary  damages,  but 
will  not  diminish  actual  damages.-''"  But  compensatory  damages 
are  not  necessarily  limited  to  actual  money  losses.  For  an  unlaw- 
ful incarceration  in  an  insane  asylum  one  may  recover,  not  only 
money  expended  in  procuring  his  release,  but  also  for  consequent 
humiliation,  shame,  disgrace,  and  injury  to  reputation.^^" 

Libel  and  Slander. 

On  the  same  principle  that  whatever  tends  to  prove  malice  in 
defamation  aggravates  the  wrong,  and  entitles  the  plaintiff  to  exem- 
plary damages,^^^  whatever  negatives  malice  operates  to  mitigate 
damages.  The  jury  determines  whether  given  matter  is  in  mitiga- 
tion or  aggravation  of  damages. 

Same — Provocation. 

Provocation  may  mitigate  damages.^®^  The  law  makes  allowance 
for  acts  committed  in  the  heat  of  sudden  passion  by  way  of  mitiga- 
tion of  damages.  But  if  there  had  been  an  opportunity  for  blood 
to  cool,  a  mere  provocation,  connected  with  wrong  complained  of, 
cannot  be  shown,"^     The  defense  follows  the  analogy  of  provoca- 

street  has  been  sustained  as  adequate.  Henderson  v.  McReynolds,  60  Hun, 
o79,  14  N.  Y.  Supp.  351.  And  see  Cabell  v.  Arnold  (Tex.  Civ.  App.)  22  S.  W. 
62;   Wiley  v.  Keokuk,  6  Kan.  94. 

2B9  Holmes  v.  Blyler,  80  Iowa,  365,  45  N.  W  756;  Livingston  v.  Burroughs. 
33  Mich.  511;  Tenney  v.  Smith,  63  Vt.  520,  22  Atl.  659;  Comer  v.  Knowles, 
17  Kan.  436;  Sleight  v.  Ogle,  4  E.  D.  Smith,  445;  Miller  v.  Orice,  2  Rich.  27; 
McDaniel  v.  Needham,  61  Tex.  269;  Rogers  v.  Wilson,  Minor  (Ala.)  407"; 
Hill  V.  Taylor,  50  Mich.  549,  15  N.  W.  899;  Roth  v.  Smith,  41  111.  314.  Good 
faith  as  a  justification.  Aldrich  v.  Weeks,  62  Vt,  89,  19  Atl.  115.  Provoca- 
tion no  justification.  Grace  v.  Dempsey,  75  Wis.  313,  43  N.  W.  1127.  Nor 
bad  character  of  defendant.  Hurlehy  v.  Martine,  56  Hun,  648,  10  N.  Y.  Supp. 
i)2. 

2  80  Such  damages,  not  being  punitive,  may  be  recovered  after  death  of  de- 
fendant.    Hewlett  v.  George,  68  Miss.  703.  9  So  ith.  885. 

2G1  See  post,  207.  See,  also,  Hayes  v.  Todd,  34  Fla.  233,  15  South.  752; 
€ruikshank  v.  Gordon,  118  N.  Y.  178,  23  N.  E.  457;  Grace  v.  McArthur,  76  Wis. 
641,  45  N.  W.  518;   Callahan  v.  Ingram,  122  Mo.  355,  26  S.  W.  1020. 

262  Tarpley  v.  Blabey,  2  Bing.  N.  C.  437. 

263  Quinby  v.  Tribune  Co.,  38  Minn.  528,  38  xN.  W.  623,  Stewart  v.  Tribune 
€o..  41  Minn.  71,  42  N.  W.  787. 


§    41)  AGGRAVATION    AND    MITIGATION    OF    DAMAGES.  Ill 

tion  as  mitigating  damages  in  assault  and  battery,  but  tbere  does 
not  seem  to  be  any  doctrine  akin  to  contributory  negligence,  whereby 
the  wrong  is  barred  if  the  person  defamed  in  some  manner  induced 
the  publication.-^* 

Same —  Common-Law  Retraction. 

A  mere  offer  to  retract  cannot  be  shown  in  mitigation  of  damages, 
but  a  retraction  published  in  good  faith,  even  after  commencement 
of  an  action  for  defamation,  may,  under  some  circumstances,  be 
proved  in  mitigation  of  damages,- ^^  but  in  mitigation  only,*  because 
it  negatives  malice. ^"^  Conversely,  evidence  that  the  defamer,  sub- 
sequent to  the  publication  of  the  article  sued  on,  has  published 
another,  containing  a  letter  from  the  defamed  requesting  a  retrac- 
tion, is  admissible  to  show  malice.^®^ 

Same — Honest  Belief — Rwmoi's. 

The  law  recognizes  that  anything  tending  to  show  an  honest  be- 
lief in  the  substance  of  the  publication  when  made  is  admissible 
for  the  purpose  of  disproving  malice  and  mitigating  damages,  though 
it  tends  to  prove  the  truth  of  the  charge.^®^  Accordingly,  in  an 
action  for  slander,  evidence  that  the  slander  was  only  a  repetition 
of  a  current  report  of  long  standing,  by  which  plaintiff's  general 
reputation  has  become  impaired,  is  admissible  in  mitigation  of  dam- 
ages.^®°  And  where  the  article  contained  several  distinct  libelous 
charges,  a  justification  as  to  part  of  the  charges,  and  not  the  whole, 
goes  only  in  mitigation  of  damages,  and  does  not  warrant  a  verdict 
for  the  defendant.^^"  Therefore,  partial  truth  may  mitigate  dam- 
ages.-^^     But  good  faith  and  reasonable  belief  will  not  prevent  re- 

284  Vallery  v.  State,  42  Neb.  123,  60  N.  W.  Ml. 

28BTurton  v.  Recorder  Co.,  144  N.  Y.  144,  38  N.  E.  1009;  Davis  v.  Marx- 
bausen,  103  Mich.  315,  61  N.  W.  504;    Storey  v.  Wallace,  m  111.  5i. 

*  Davis  V.  Marxhausen,  103  Mich.  315.  61  N    W.  504. 

206  Allen  V.  Pioneer  Press  Co.,  40  Miuu.  117,  4i  N.  W.  936;  Park  v.  Deti'Oit 
Free-Press  Co.,  72  Mich.  500,  40  N.  W.  731. 

267  Thibault  v.  Sessions,  101  Mich.  279,  59  X.  W.  624. 

268Hiison  V.  Dale,  19  Mich.  17,  26. 

289  XeLson  v.  Wallace,  48  Mo.  App.  193. 

27  0  Hay  V.  P.eid,  85  Mich.  296,  4S  N.  W.  .507. 

*7i  Sawyer  v.  Bennett  (Sup.)  20  N.  Y.  Supp    45. 


11^  COMPENSATOUY    DAMAGES.  (Cll.   S 

oovery  of  substantial  damages.-''^  Cases  involving  these  general 
principles  are  constantly  arising  in  connection  with  the  defense 
urged  by  the  defendant  that  his  conduct  was  justified  by  rumors 
concerning  the  plaintiff. 

So  far  as  it  may  affect  the  culpability  of  the  defendant,  as  miti- 
gating damages,  evidence  that  he  knew,  believed,  and  relied  on-'^ 
general  rumors  to  the  effect  of  the  defamatory  matter  would  be  en- 
tirely proper.  Hence,  such  evidence  is  often  held  to  be  admissi- 
ble.^''* However,  from  the  plaintiff's  point  of  view,  the  extent  of 
his  suffering  is  not  measured  by  defendant's  moral  shortcoming  or 
personal  righteousness.  Hence,  such  evidence  is  perhaps  as  often 
disallowed.^ ^^  If,  however,  a  defendant  offers  to  prove  such  ru- 
mors, he  cannot  object  to  similar  evidence  in  rebuttal. ^'^^  But  pub- 
lishing defamatory  matter  as  a  rumor,^''  or  giving  a  specific  source 
as  authority,  is  no  longer  ^^^  a  defense  ^'^  by  way  of  justification, 
although  it  may  operate  to  mitigate  damages.^^" 

272  Biu-t  V.  Newspaper  Co.,  154  Mass.  238.  28  N.  E.  1;  Blocker  v.  Schoff, 
83  Iowa,  265,  48  N.  W.  1079. 

27  8  Larrabee  v.  Tribune  Co.,  36  Minn.  141,  30  N.  W.  462;  Lothrop  v.  Adams, 
133  Mass.  471.  Truth  of  the  charge,  though  not  pleaded,  is  admissible  to 
disprove  malice,  and  in  mitigation  of  damages,  if  it  was  known  at  the  time 
of  publication,  but  not  otherwise.  Simons  v.  Burnham,  102  Mich.  189,  60 
N.  W.  476;   Quinn  v.  Scott,  22  Minn.  456. 

27  4  Van  Derveer  v.  Sutphin,  5  Ohio  St.  293;  Republican  Pub.  Co.  v.  Mosman, 
15  Colo.  399,  24  Pac.  1051;  Hay  v.  Reid,  So  Mich.  296,  48  N.  W.  507;  Morrison 
V.  Publishing  Co.  (Super.  N.  Y.)  14  N.  Y.  Supp.  131;  Arnold  v.  Jewett,  125  Mo. 
241,  28  S.  AV.  614. 

275  Scott  v.  Sampson,  8  Q.  B.  Div.  491;  Edwards  v.  Soctety,  99  Cal.  431, 
34  Pac.  128;  Gray  v.  Elzroth,  10  Ind.  App.  587,  37  N.  E.  551;  Blackwell  v. 
Landroth.  90  Va.  748,  19  S.  E.  791. 

27  8  Bogk  V.  Gassert,  149  U.  S.  17,  13  Sup.  Ct.  738;  Ward  v.  Manufacturing 
Co.,  5  C.  C.  A.  538,  56  Fed.  437. 

277Haskins  v.  Lumsden,  10  Wis.  359;  Republican  Pub.  Co.  v.  Miner,  3 
Colo.  App.  568,  34  Pac.  485. 

278Maitland  v.  Goldnoy,  2  East,  426;    Northampton's  Case,  12  Coke,  384. 

279  Lewis  v.  Walter,  4  Barn.  &  Aid.  605;  Tidman  v.  Ainslie,  10  Exch.  63; 
Watkin  v.  Hall,  L.  R.  3  Q.  B.  396. 

2  80  Dole  V.  Lyon,  10  Johns.  447. 


§    41)  AGGRAVATION    AND    MITIGATION    OF    DAMAGES.  113 

Same — Plaintiff  ^s  Character  and  Position. 

When  one  claims  damages  on  the  ground  of  the  di^.paraj;i'iii('ut 
of  his  character,  evidence  in  mitigation  of  damages  may  be  given, 
under  proper  allegation,-^ ^  that  his  character  was  blemished  before 
the  publication  of  the  libel  or  slander.-^-  Thus,  in  an  action  for 
libel,  the  defendant  ma.j  prove,  in  mitigation  of  damages,  that,  be- 
fore and  at  the  time  of  the  publication  of  the  libel,  the  plaintiff  was 
generally  suspected  to  be  guilty  of  the  crime  thereby  imputed  to 
him,  and  that,  on  account  of  this  suspicion,  his  relatives  and  friends 
had  ceased  to  associate  with  him.-^^  Evidence  of  general  bad  repu- 
tation is  admissible,  in  mitigation  of  damages;  and  evidence  of  bad 
reputation  as  to  that  phase  of  character  involved  in  a  case  is  com- 
petent, not  to  establish  an}-  facts  in  issue,  but  to  explain  conduct, 
and  to  enable  the  jury  better  to  weigh  the  evidence  upon  doubtful 
questions  of  fact  bearing  on  the  character  of  defendant.^®*  There- 
fore, bad  reputation  for  integrity  is  admissible  in  charges  of  political 
dishonesty.  "We  should  be  loth  to  differentiate  a  want  of  integrity 
in  political  matters  from  the  same  failing  in  business  or  society."  ^^' 
The  plaintiff's  general  social  and  personal  standing  may  be  shown 
in  evidence  as  bearing  on  the  question  of  damages.- ^"^  And  if  plain- 
tiff alleges  her  good  character  and  repute,  and  this  is  denied  by  the 
defendant,  the  plaintiff  is  not  required  to  rest  upon  the  legal  pre- 
sumption as  to  chastity  and  virtue,-^'  but  she  can  properly  offer 
proof  under  such  allegation  as  part  of  her  case.^^® 

281  Halley  v.  Gregg,  82  Iowa,  (JL'2,  48  N.  W.  974;  ^Yard  v.  Dean,  57  Hun, 
585,  10  N.  Y.  Supp.  421. 

2  82  Ball,  Cas.  Torts,  p.  122. 

283  Earl  of  Leicester  v.  Walter,  2  Camp.  251.  Ct  Sanford  v.  Rowley.  93 
Mich.  119.  52  N.  W.  1119. 

2  84  Hallam  v.  Post  Pub.  Co.,  55  Fed.  45G  See  Tbibault  v.  Sessions,  101 
Mich.  279.  59  N.  W.  G24. 

285  Post  Pub.  Co.  V.  Hallam.  8  C.  C.  A.  201.  59  Fed.  530. 

2  86  Larned  v.  Buffintou,  3  .Mass.  .540;  Klumpli  v.  Dimn,  GG  Pa.  St.  141; 
Press  Pub.  Co.  v.  McDonald.  11  C.  C.  A.  15.5,  G3  Fed.  238;  Morey  v.  Associa- 
tion, 123  N.  Y.  207.  25  N.  E.  1(!1;  Farrand  v.  Aldrieh,  85  Midi.  593.  48  N.  W. 
C28;    Hintz  v.  Graupner,  1.38  111.  158,  27  N.  E.  !t:;5. 

28T  Conroy  v.  Pittsburgh  Times,  139  Pa.  St.  3.'{4.  21  Atl.  154. 

288  Stafford  v.  Morninj:  .Tourual  Ass'n,  142  N.  Y.  598,  37  N.  F.  (;25;  Vuuiit:. 
V.  Johnson,  123  .\.  Y.  L'L'C,  25  .N.  F.  3(.J3. 

LAW  U.\.M. — b 


114  COMPENSATORY    DAMAGES.  (Ch.   3 


REDUCTION  OF  LOSS. 

42.  An  injured  party  cannot  be  compelled  to  accept  spe- 
cific reparation  in  lieu  of  damages;  but,  if  he  does 
so  voluntfarily,  it  "will  operate  as  a  reduction  of 
damages. 

The  right  to  recover  damages  is  a  species  of  property  which  vests 
absolutely  in  the  injured  party  on  the  happening  of  the  wrong.-^® 
It  is  a  right  to  recover  a  money  judgment,  and  nothing  but  the  in- 
jured party's  own  act  can  release  it.^°°  He  cannot  be  compelled  to 
accept  specific  reparation  in  lieu  of  damages,  for  he  has  an  absolute 
right  to  a  money  judgment.-^^     Hence  an  offer  by  defendant  to  re- 

289  See  aute,  p.  2*.  Where  plaintiff  cured  certain  fruit  for  defendants,  wlio 
disposed  of  It  at  values  usually  obtained  for  good  fruit,  that  fact  will  uot  affect 
plaintifC's  liability  to  defendants  for  damages  to  the  fruit  in  defectively  curing 
it.     E.  E.  Thomas  Fruit  Co.  v.  Start,  107  Cal.  206,  40  Pac.  33G. 

290  Ordinarily  the  fact  that  defendant  applied  th ,  proceeds  of  his  wrong  to 
plaintiff's  benefit  will  uot  reduce  the  damages,  as  plaintiff  may  refuse  to  accept 
such  application.  Torry  v.  Blacli,  58  N.  Y.  185.  The  fact  that  defendant  paid 
a  note  of  plaintiff's  Avith  the  proceeds  of  converted  property  will  not  reduce 
the  damages.  Northrup  v.  McGill,  27  Mich.  234.  A  sheriff  who  has  wrong- 
fully sold  goods  belonging  to  plaintiff  cannot  reduce  the  damages  by  showing 
that  he  paid  a  debt  of  the  plaintiff  out  of  the  proceeds.  Parham  v.  McMur- 
ray,  32  Ark.  261;  Dallam  v.  Filler,  6  Watts  &  S.  323;  McMichael  v.  Mason,  13 
Pa.  St.  214.  Where  the  injured  party  consents  to  the  applicatiou,  it  will  re- 
duce the  damages.  Torry  v.  Black,  supra.  An  unaccepted  offer  to  return  the 
goods  cannot  be  shown,  to  mitigate  the  damage.*;  for  conversion.  Carpenter  v. 
Dresser,  72  Me.  377.  Where  the  application  is  authorized  by  law,  the  injured 
party  cannot  object,  and  damages  will  be  reduced.  Kaley  v.  Shed,  10  Mete. 
(Mass.)  317;  Empire  Mill  Co.  v.  Lovell,  77  Iowa,  100,  41  N.  W.  5S3;  Ward  v. 
Benson,  31  How.  Prac.  411.  In  an  action  for  conversion,  defendant  may  show 
that  the  goods  were  seized  and  sold  under  an  execution  against  plaintiff. 
Perkins  v.  Freeman,  26  111.  477;  Bates  v.  Courtwright,  36  111.  51S;  Ball  v. 
Liney,  48  N.  Y.  6;  Wehle  v.  Spelman,  25  Hun,  99;  Lazarus  v.  Ely,  45  Conn. 
504;  Howard  v.  Manderfleld,  31  Minn.  337,  17  N.  W.  946;  Beyersdorf  v.  Sump, 
39  Minn.  495.  41  N.  W.  101.  Compare  Lazarus  v.  Ely,  45  Conn.  504;  Hopple 
v.  Higbee,  23  N.  J.  Law,  342;  Mayer  v.  Duke,  72  Tex.  445,  10  S.  W.  565— with 
Edmondson  v.  Nuttall,  34  Law  J.  C.  P.  102.  104,  17  C.  B.  (N.  S.)  280;  Stickney 
V.  Allen,  10  Gray,  352;  Beyersdorf  v.  Sump,  39  Minn.  495,  41  N.  W.  101;  Ball 
v.  Liney,  48  N.  Y.  6;   Wehle  v.  Butler,  61  N.  Y.  245. 

291  In  Fisher  v. Prince,  3  Burrows,  1363, Lord  Mansheld  said:    "Where  trover 


§    42)  REDUCTION    OF    LOSS.  115 

turn  converted  property  will  not  reduce  the  damages  if  not  accepted 
by  the  plaintiff. -''-  The  rule  of  avoidable  consequences  does  not  re- 
quire the  injured  party  to  receive  back  converted  property,  nor  to 
buy  it  back,  though  offered  at  less  than  the  market  price.^®^  The 
rule  has  no  application  to  losses  already  completely  suffered.  As  to 
such  losses,  the  right  to  pecuniary  compensation  is  absolute.  But 
if  the  reparation  oft'ered  would  prevent  further  loss,  not  at  that 
time  actually  suffered,  the  rule  applies,  and  the  reparation  must 
be  accepted,  as  compensation  for  subsequent  losses  will  be  denied. 

Reparation  Precenting  Actual  Loss. 

Where  the  reparation  by  defendant  has  actually  prevented  the 
happening  of  any  damage  in  the  first  instance,  from  the  injury,  it 
may  be  shown,  whether  accepted  by  the  plaintiff  or  not,  as  it  goes  to 
show  the  actual  amount  of  damage,  and  plaintiff  never  had  a  right 
to  recover  anything  more.^®**     Thus,  in  an  action  for  breach  of  a 

is  brought  for  a  specific  chattel,  of  an  ascertained  quantity  and  quality,  and 
unattended  by  any  circumstances  that  can  enhance  the  damages  above  the 
real  value,  but  that  its  real  and  ascertained  value  must  be  the  sole  measure  of 
the  damages,  there  the  specific  thing  demanded  may  be  brought  into  court. 
Where  there  is  an  uncertainty  either  as  to  the  quantity  or  quality  of  the 
thing  demanded,  or  that  there  is  any  tort  accompanying  it  that  may  enliance 
the  damages  above  the  real  value  of  the  thing,  and  there  is  no  rule  whereby  to 
estimate  the  additional  value,  then  it  shall  not  be  brought  in."  See,  also. 
Whitten  v.  Fuller,  2  W.  Bl.  902;  Earle  v.  Holderness,  4  Bing.  4G2;  Tucker  v. 
Wright,  3  Bing.  GOl;  Gibson  v.  Humphrey,  1  Cromp.  &  M.  544.  The  practice 
of  staying  proceedings  upon  bringing  property  into  court  ha«!  never  generally 
prevailed  in  this  country,  but  it  seems  to  be  the  practice  in  Vermont.  Rut- 
land &  W.  R.  Co.  V.  Bank  of  Mlddlebury,  32  Vt.  639;  Bucklin  v.  Beals,  3S  Vt. 
■0.j3.     And  see  Stevens  v.  Low,  2  Hill,  132;   Shotwell  v.  Weudover,  1  Johns.  G5. 

292  Norman  v.  Rogers,  29  Ark.  3G5;  Carpenter  v.  Oresser,  72  Me.  377;  Stick- 
ney  v.  Allen,  10  Gray,  332;  Bringard  v.  Stellwagen,  41  Mich.  r>4,  1  N.  W.  909; 
Livermore  v.  Northrup,  44  N.  Y.  107;  Carpenter  v.  Insurance  Co.,  22  Ilun,  47; 
•Green  v.  Sperry,  IG  Vt.  390;   Morgan  v.  Kidder,  5o  Vt.  3G7. 

293  Weld  V.  Reilly,  48  N.  Y.  Super.  Ct.  531;  Muason  v.  Munson,  24  Conn.  11."); 
Woods  V.  McCall,  G7  Ga.  50G. 

204  Dow  V.  Humbert,  91  U.  S.  294;  Stollenworck  v.  Thadier,  115  Mas.s.  224. 
In  estimating  the  damages  caused  by  the  diversion  of  a  stream,  the  fact  that  a 
part  of  the  water  diverted  was  returned  to  the  stream  above  plaintiff's  land 
must  be  considered.  Maimvillo  Co.  v.  City  of  Worcester,  138  Mass.  89. 
Where  a  wrongful  act  results  In  both  a  benolit  and  an  injury,  an  allowance 
must  be  made  for  the  bendit.     Miiyo  v.  City  of  H|)ringliL'ld,  13S  Mass.  70,  wa.s 


IIG  COMI'ENSAT'JllY    DAMAGLS.  (Ch.   5 

covenant  against  incumbrances,  where  the  covenantor  bought  in  the 
outstanding  incumbrance,  and  the  plaintiff  was  not  actually  in- 
jured by  it,  it  was  held  that  only  nominal  damages  could  be  re- 
covered.-"^ 

Reparation  Accepted. 

Where  the  reparation  offered  is  voluntarily  accepted,  the  dam- 
ages recoverable  are  the  difference  between  the  original  loss  aud 
the  value  of  the  thing  returned  at  the  time  of  acceptance,  for  that 
represents  the  actual  loss.  One  cannot  have  both  the  thing  itself 
and  damages  for  its  loss.  This  has  been  held  in  actions  of  tro- 
ver,-"" trespass,^"^  and  replevin,-"^  where  the  property  wrongfully 

au  action  for  placing  earth  on  another's  laud.  The  court  said:  "In  determining 
the  extent  of  the  injury  to  plaintiff's  laud,  the  court  had  a  right  to  consider 
the  benefits,  if  any.  arising  from  placing  the  earth  upon  the  land.  An  allow- 
ance for  such  benefits  is  not  in  the  nature  of  recoupment  or  set-off,  but  a 
method  of  determining  the  actual  damages  sustained."  See,  also,  Schroeder  v. 
De  Graff,  28  Minn.  299,  9  N.  W.  8-57;  Murphy  v.  City  of  Fond  du  Lac,  23 
Wis.  365;  Jeffersonville,  M.  &  1.  R  Co.  v.  Esterle,  13  Bush,  GGT;  Forsyth  v. 
Wells,  41  Pa.  St.  291;  McLean  County  Coal  Co.  v.  Long,  81  111.  359;  Single 
V.  Schneider,  24  Wis.  299;  Winchester  v.  Craig,  33  Mich.  205;  Moody  v.  Whit- 
ney, 38  Me.  174.  In  an  action  for  flooding  lands,  an  allowance  for  benefits 
caused  thereby  was  denied  in  Gerrish  v.  Manufacturing  Co.,  30  N.  H.  478,  aud 
Tillotson  V.  Smith,  32  N.  H.  90;  and  granted  in  Luther  v.  AVinnisimmet  Co.. 
9  Cush.  171;  Imboden  v.  Mining  Co.,  70  Ga.  8G,  116;  Brower  v.  Merrill.  3 
Chand.  (Wis.)  40;  Howe  v.  Ray,  113  Mass.  88.  The  allowance  is  confined  to 
benefits  resulting  from  the  overflow,  and  does  not  include  benefits  arising  from 
defendant's  collateral  operation.  Gile  v.  Stevens,  13  Gray,  146;  Talbot  v. 
Whipple,  7  Gray,  122;  Marcy  v.  Fries,  18  Kan.  353.  It  has  been  held  that  no 
allowance  can  be  made  for  a  benefit.  Gerrish  v.  Manufacturing  Co.,  30  N.  H, 
478;  Tillotson  v.  Smith,  32  N.  H.  90.  In  au  action  for  rents  and  profits,  an 
allowance  must  be  made  for  improvements,  and  the  expenses  necessarily  in- 
curred to  make  the  land  profitable,  provided  the  improvements  and  expenses 
were  made  in  good  faith.  Hylton  v.  Brown,  2  Wash.  C.  0.  1G5,  Fed.  Cas, 
No.  6,983;    Hodgkins  v.  Price,  141  Mass.  162.  5  N.  E.  502. 

295  McMuis  V.  Lyman,  62  Wis.  191,  22  N.  W.  405;    Hartford  &  S.  Ore  Co.  v. 
Miller,  41  Conn.  112. 

296Barrelett  v.  Bellgard,  71  111.  280;    Bowman  v.  Teall,  23  Wend.  306;    Mc- 
Cormick  v.  Railroad  Co.,  80  N.  Y.  353;   Dailey  v.  Crowley,  5  Lans.  301;    Lucas 


297  Hanmer  v.  Wilsey,  17  Wend.  91;    Vosburgb  v.  Welch,  11  Johns.  175 ^ 
Gibbs  V.  Chaise.  10  Mass.  125.     See  Mayo  v.  City  of  Springfield,  138  Mass.  70. 

298  De  Witt  V.  -Morris,  13  Wend.  490;    Conroy  v.  Flint,  5  Cal.  327. 


■§    42)  REDUCTION    OF    hOSS.  Il7 

taken  was  returned  to  and  accepted  by  the  plaintiff.  But  even  in 
such  cases  nominal  damages  may  be  recovered. -^^  So,  also,  where 
property  taken  has  been  recovered  by  the  owner,  by  repurchase  or 
otherwise,  the  damages  for  the  taking  w411  be  reduced  by  the  value 
of  the  property  recovered;  but  compensation  will  be  given  for  the 
expenses  incurred  in  recovering  the  property.^ °° 

Jiepnration  by  Third  Party. 

Reparation  made  by  a  third  party,  if  accepted  as  such,  or  if  of  a 
nature  to  prevent  further  loss,  will  reduce  the  damages  recoverable ; 
but  if  a  benefit  received  from  a  third  person  be  a  pure  gratuity,  and 
not  intended  to  be  in  lieu  of  damages,  or  if  it  be  paid,  not  by  pro- 
<?urement  of  defendant,  but  in  pursuance  to  a  contract  founded  on  a 
<;onsideration  paid  by  plaintiff,  it  will  not  reduce  the  damages, 
though  made  on  account  of  the  injury,^°^  Thus,  in  an  action  for 
personal  injuries,  the  fact  that  a  third  person,  in  whose  employment 
plaintiff  was,  continued  his  salary  during  the  time  he  was  disabled, 
will  not  reduce  the  damages  recoverable  from  defendant.^"-  The 
defendant  is  liable  for  the  value  of  care  and  nursing,  though  it  was 
furnished  gratuitously.^"^  So,  also,  the  payment  of  insurance 
money  will  not  operate  to  reduce  damages.^"* 

V.  Trumbull,  15  Gray,  30G;  Long  v.  Lamkin,  9  Gush.  361;  Delano  v.  Curtis,  7 
Allen,  470;  Perham  v.  Coney,  117  Mass.  102;  Gove  v.  Watson,  61  N.  H.  136; 
Murphy  v.  Hobbs,  8  Colo.  17,  5  Pac.  637;  Bates  v.  Clark,  95  U.  S.  204;  Ren- 
fro's  Adm'x  v,  Hughes,  69  Ala.  581;   Yale  v.  Saunders,  16  Vt.  243. 

299  Murray  v.  Burling,  10  Johns.  172;  Reynolds  v.  Shuler,  5  Cow.  323; 
Wheelock  v.  Wheelwright,  5  :Mass.  104;    Gibbs  v.  Chase,  10  Mass.  125. 

300  Mclnroy  v.  Dyer,  47  Pa.  St.  118;  Felton  v.  Fuller,  35  N.  H.  226;  Dodson 
V.  Cooper,  37  Kan.  346,  15  Pac.  200;  Forsyth  v.  Palmer,  14  Pa.  St.  96;  Ford  v. 
Williams,  24  N.  Y.  359;  Baldwin  v.  Porter,  12  Conn.  473;  Johannesson  v. 
Borschenius,  35  Wis.  131;  Sprague  v.  Brown,  40  Wis.  612;  Tainbaco  v.  Simp- 
son, 19  C.  B.  (\.  S.)  4.53.     But  see  Harris  v.  Eldred,  42  Vt.  39. 

801  Where  land  on  which  houses  are  being  built  is  taken  for  a  city  street,  the 
contractor  cannot  recover  damages  from  both  the  city  and  the  owner  for  the 
same  items  of  loss.     Heaver  v.  Lanahan,  74  Md.  493,  22  Atl.  2(>;{. 

802  Ohio  &  M.  R.  N.  Co.  v.  Dickerson,  59  lud.  317.  See,  also,  Elmer  v.  Fes- 
senden,  154  Mass.  427,  28  N.  E.  299.  Contra.  Driukwater  v.  Dinsiiiore,  8U  N. 
Y.  390. 

802  Pennsylvania  Co.  v.  Marion.  104  Ind.  2.39,  3  N.  E.  874.  See,  also,  Norris- 
towu  V.  Moyer,  67  Pa.  St.  3.55.  But  see  Peppercorn  v.  City  of  Bhick  River 
Falls.  S9  Wis.  38,  61   N.   W.  79. 

•  04  Kingsbury  v.   Westfall,  61   N.  Y.  356;    Altliorf  v.   Wolfe,  22  N.   Y.  :{55; 


118  COMPENSATORY    DAMAGES.  (Ch.   3 


INJURIES  TO  LIMITED  INTERESTS. 

43.  The  measure  of  damages  for  injuries  to  limited  inter- 
ests in  property  -will  be  considered  under  the  fol- 
lowing heads: 

(a)  Interests  in   real  property  in   possession  and  in  ex- 

pectancy (p.   118). 

(b)  Special  property  and  ultimate  o-wnership  in  personal 

property  (p.  119). 

(c)  Interest  of  mortgagors  and  mortgagees  (p.  120). 

(d)  Joint  interests  (p.  120). 

Interests  in  Real  Property  in  Possession  and  in  ExpecUincy. 

One  having  the  right  to  the  possession  of  real  property  for  a 
limited  time  can  recover  for  any  interference  with  his  possession  or 
injury  to  the  property  only  the  damages  to  his  own  interest,  and 
not  for  the  whole  injury.  This  rule  applies  to  life  tenants,^*^^ 
lessees,^"^  and  to  mere  occupants.^"^  But  a  lessee  may  recover 
compensation  for  the  whole  injury  when  he  is  liable  over  to  his 
landlord.^"^  The  owners  of  expectant  interests  in  land,  lessors, 
reversioners,  and  remainder-men  can  recover  for  injuries  to  the  prop- 
erty only  the  damages  to  their  own  interests.^ °° 

Briggs  V.  Railroad  Co.,  72  N.  Y.  26;  Carpenter  v.  Eastern  Transp.  Co.,  71  N.  Y, 
574;  Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Thompson,  56  111.  138;  Dillon  v.  Hunt, 
105  Mo.  154,  16  S.  W.  516;  Hammond  v.  Scliiff,  100  N.  C.  101,  6  S.  E.  753^ 
Hay  ward  v.  Cain,  105  Mass.  213;  Weber  v.  Morris  &  E.  R.  Co.,  36  N.  J.  Law, 
213;  Harding  v.  Townshend,  43  Vt.  536;  Perrott  v.  Shearer,  17  Mich.  48; 
Texas  &  P.  R.  Co.  v.  Levi,  59  Tex.  674;  The  Monticello  v.  Mollison,  17  How. 
153;  Yates  v.  Whyte,  4  Bing.  N.  C.  272.  See,  also,  Congdon  v.  Scale  Co.,  66 
Vt.  255,  29  Atl.  253;  Eureka  Fertilizer  Co.  v.  Baltimore  Copper,  Smelting  & 
Rolling  Co.,  78  Md.  179,  27  Atl.  1035;  Lake  Erie  &  W.  R.  Co.  v.  Gritfin.  S 
Ind.  App.  47,  35  N.  E.  396. 

305  Greer  v.  Mayor,  etc.,  1  Abb.  Prac.  (N.  S.)  206. 

306  Holmes  v.  Davis,  19  N.  Y.  488;  Cf.  Terry  v.  Mayor,  etc.,  8  Bosw.  (X.  Y.> 
504;   Illinois  &  St.  L.  Railroad  &  Coal  Co.  v.  Cobb.  94  111.  55. 

307  Brown  v.  Bowen,  30  N.  Y.  519. 

30  8  Walter  v.  Post,  4  Abb.  Prac.  382. 

309  Cooper  V.  Randall,  59  111.  317;  Schnable  v.  Koehler,  28  Pa.  St.  181;  Seely 
V.  Alden,  61  Pa.  St.  302;  Dorsey  v.  Moore,  100  N.  C.  41,  6  S.  E.  270;  Dutro  v. 
Wilson,  4  Ohio  St.  101. 


§    43)  INJURIES    TO    LIMITED    INTERESTS.  119 

Special  Property  and  Ultimate  Ownership  in  Personal  Property. 

One  having  a  special  property  in  personal  property,  such  as  a 
Iessee,^^°  pledgee,^^^  factor,^^^  or  bailee,^^^  is  treated  as  the  owner 
in  actions  against  third  persons  for  the  loss  or  injury  of  the  prop- 
erty, and  recovers  the  damages  to  his  own  interest  and  that  of  the 
ultimate  owner.  The  same  rule  obtains  in  a  suit  on  a  replevin  bond 
in  nearly  all  the  states,^^*  though  there  are  a  few  decisions  con- 
tra.""  If  the  owner,  for  any  reason,  could  not  recover  against  the 
wrongdoer,  then  the  one  in  possession  under  a  special  property  can 
recover  only  for  the  injury  to  his  special  property.^^"  The  measure 
of  damages  is  the  same  in  an  action  against  the  owner  for  conver- 
sion or  injury  to  the  property.^^'^  For  conversion  or  injury  to  prop- 
erty, the  owner  can  recover  of  one  in  possession  the  value  of  the 
property,  less  the  defendant's  interest  therein. ^^*     Against  a  third 

310  Caswell  v.  Howard,  IG  Pick.  562:  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Bigs, 
50  Ark.  1G9,  G  S.  W.  724. 

311  United  States  Exp,  Co.  v.  Meints,  72  111.  293;  Mechanics'  &  Traders'  Bank 
of  Buffalo  V,  Farmers'  &  Mechanics'  Nat.  Bank  of  Buffalo,  GO  N.  Y.  40;  Adams 
V.  O'Connor,  100  Mass.  515;  Pomeroy  v.  Smith,  17  Pick.  85;  Lyle  v.  Barker, 
5  Bin.  (Pa.)  457.  A  depositary  may  maintain  any  proper  action  to  protect 
himself  and  the  depositor.    Knight  v.  Carriage  Co.,  IS  C.  C.  A,  2S7,  71  Fed.  GG:^. 

312  Groover  v.  Warfield,  50  Ga.  G44. 

313  Brewster  v.  Warner,  13G  Mass.  57;  Finn  v.  Railroad  Corp.,  112  Mass. 
524;  Garretson  v.  Brown,  26  N.  J.  Law,  425;  Rooth  v.  Wilson,  1  Barn.  ^Vc  Aid. 
.">9;  Armory  v.  Delamirie,  1  Strange,  505.  But  see  Claridge  v.  Tramway  Co. 
[1S92]  1  Q.  B.  422. 

314  Adkins  v.  Moore,  82  111.  240;  Broadwell  v.  Paradice,  81  111.  474;  Buck  v. 
Remsen,  34  N,  Y.  383;  Burt  v.  Burt,  41  Mich.  82,  1  X.  W.  936;  Frei  v.  Vogel, 
40  Mo.  149;   Frey  v.  Drphos,  7  Neb.  194. 

816  Hayden  v,  Anderson,  17  Iowa,  158;  Jennings  v.  Johnson,  17  Ohio,  154; 
Latimer  v.  Mottcr,  26  (Jhio  St.  480;  Cumberland  Coal  &  Iron  Co.  v.  Tilgluiian, 
13  Md.  74. 

816  Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.,  93  U.  S.  527;  Lowell  v, 
Parker,  10  Mete.  (Mass.)  309;  Mears  v.  Cornwall,  73  Mich.  78,  40  N.  W.  931; 
Sheldon  v.  Express  Co..  48  Ga.  625. 

817  Davidson  v.  Gunsolly,  1  Mich,  388;  Fitzhugh  v.  Wiman.  9  N.  Y.  .5,59; 
Baldwin  v.  Bradley.  69  111.  32. 

818  Fisher  v.  Brown,  104  Mass.  2.59;  Fowler  v.  Gilmau,  13  Mete.  (Mass.)  267; 
Craig  V.  McHenry,  35  Pa.  St.  120;  Wheeler  v.  Peieles,  43  Wis.  332;  Johnson 
y.  Stear,  15  C.  B.  (N.  S.)  330. 


120  COMPENSATORY    DAMAGES.  (Ch.   3 

person  the  owner  recovers  the  full  value  of  the  piopeity,  or  com- 
pensation for  the  injury  to  it.^^* 

Interest  of  Mortgagors  and  Mortgagees. 

A  mortgagee  of  real  property  can  recover  for  any  injury  to  the 
mortgaged  property,  either  by  the  mortgagor  or  by  a  third  person, 
the  amount  in  which  his  security  is  impaired.^-"  A  mortgagee  of 
personal  property  can  recover  against  a  stranger  full  compensation 
for  any  injury  to  the  property.^^^  But,  against  the  mortgagor,  he 
can  recover  only  the  amount  due  on  the  mortgage  debt,  provided 
this  does  not  exceed  the  value  of  the  property.^ ^^  A  mortgagor  of 
personal  property,  in  an  action  against  the  mortgagee,  can  recover 
the  value  of  the  property  less  the  amount  due  the  mortgagee.*^' 
Against  a  stranger,  he  recovers  the  value  of  the  property.^^* 

Joint  Interest. 

A  joint  owner  can  recover  against  a  co-owner,  for  injuries  to  the 
joint  property,  or  for  excluding  him  from  its  possession,  only  a  com- 
pensation proportioned  to  his  interest.^ ^*     Against  third  persons, 

319  Greeu  v.  Clark,  12  N.  Y.  343. 

320  Van  Pelt  v.  McGraw,  4  N.  Y.  110;  Gardner  v.  Heartt,  3  Denio.  232;  At- 
kinson V.  Hewott,  03  Wis.  390,  23  iS.  W.  8S9;  State  v.  Weston,  17  Wis.  107; 
Schalk  V.  Kingsley,  42  N.  J.  Law,  32.  For  a  modification  of  this  rule  in  Massa- 
chusetts, see  Gooding  v.  Shea,  103  Mass.  300;  Byrom  v.  Chapin,  113  Mass.  308. 
As  to  recovery  by  a  junior  mortgagee,  see  Jackson  v.  Turrell,  39  N.  J.  Law, 
329. 

821  Lowe  v.  Wing,  56  WMs.  31,  13  N.  W.  892;  Allen  v.  Butman,  138  Mass.  586; 
Densmore  v.  Mathews,  58  Mich.  616,  26  N.  W.  146;  Adamson  v.  Petersen,  35 
Minn.  529,  29  N.  W.  321;   White  v.  Webb,  15  Conn.  302. 

322  Smith  V.  Phillips,  47  Wis.  202,  2  N,  W.  285;  Parish  v.  Wheeler,  22  N, 
Y.  494;  McFadden  v.  Hopkins,  81  Ind.  459.  But  the  recovery  cannot  exceed 
the  value  of  the  property.     Ganong  v.  Green,  71  Mich.  1.  38  N.  W.  661. 

3  23  Dahill  v.  Booker,  140  Mass.  308.  5  N,  E.  496;  Russell  v.  Butterfield.  21 
Wend.  300;  Bearss  v.  Preston.  66  Mich.  11,  32  N.  W.  912;  Torp  v.  Gulseth,  37 
Minn.  135,  33  N.  W.  550;  Deal  v.  D.  M.  Osborne  &  Co.,  42  Minn.  102,  43  N.  W. 
835. 

8  24  Cram  v.  Bailey,  10  Gray,  87;  Gallatin  &  N.  Turnpike  Co.  v.  Fry,  88  Tenn. 
296, 12  S.  W.  720;  Brown  v.  Carroll,  16  R.  I.  604,  18  Atl.  283. 

325  Green  v.  Edick,  66  Barb.  564;  Cutter  v.  Waddiugham,  33  Mo.  209;  Cf. 
Daniels  v.  Brown,  34  N.  H.  454. 


§    43)  INJURIES    TO    LIMITED    INTERESTS.  121 

a  joint  owner  can  recover  only  his  share.     The  rule  is  the  same 
for  both  real  ^^®  and  personal  property.^ ^'' 

326  Putney  v.  Lapham,  10  Gush.  232;  Clark  v.  Huber,  20  Gal.  196;  Holdfast 
V.  Shepard.  9  Ired.  222;  McGrew  v.  Harmon.  164  Pa.  St.  115,  30  Atl.  265,  268. 

827  Zabriskie  t.  Smith,  13  N.  Y.  322;  Bartlett  v.  Kidder,  14  Gray,  449;  Thomp- 
son V.  Hoskins,  11  Mass.  419;  Hillhouse  v.  Mix,  1  Root  (Conn.)  246. 


122         BONDS LltiUIDATED  DAMAGES ALTERNATIVE  CONTKACTS.       (Ch.   4 

CHAPTER  IV. 

BONDS,   LIQUIDATED   DAMAGES,   AND    ALTERNATIVE   CONTRACTS, 

44.  Penal  Bonds. 

45-47.  Liquidated  Damages  and  Penalties. 
48-57.  Rules    of   Construction. 

58.  Alternative  Contracts. 

PENAL  BONDS. 

44.  In  an  action  on  a  penal  bond  the  measure  of  damages 
is  compensation  for  the  actual  loss,  not  exceeding 
the  penalty  named. 

Questions  involving  a  consideration  of  liquidated  damages  and 
penalties  formerly  arose  chiefly  in  connection  with  that  peculiar 
form  of  obligation  known  as  a  "common-law  bond."  By  a  common- 
law  bond  the  obligor  bound  himself  to  pay  a  certain  sum  of  money, 
and  at  a  certain  time,  to  the  obligee,  upon  condition,  however,  that 
the  obligation  should  be  void  on  the  payment  of  some  lesser  sum,  or 
the  performance  of  some  particular  act.  There  was,  however,  no 
agreement  to  pay  the  lesser  sum,  or  perform  the  designated  act. 
Upon  breach  of  condition,  therefore,  the  sum  named  in  the  bond, 
became  the  debt,  and  could  be  recovered  in  an  action  of  debt  on  the 
bond.  This  sum  is  called  a  "penalty";  and  the  bond,  a  "penal  bond.'^ 
Blackstone  says:^  "The  penalty  named  in  the  bond  was  originally 
inserted  for  the  purpose  of  evading  the  absurdity  of  those  monkish 
constitutions  which  prohibited  the  taking  of  interest  for  money,  and 
was  therefor  pardonably  considered  the  real  debt,  in  the  courts  of 
law,  when  the  debtor  neglected  to  perform  his  agreement  for  the  re- 
turn of  the  loan  with  interest;  for  the  judges  could  not,  as  the  law 
then  stood,  give  judgment  that  the  interest  should  be  specifically 
paid."  The  rule  continued  to  be  enforced  however,  by  courts  of 
law,  even  after  the  recovery  of  interest  was  allowed  by  statute. 
Chancery  early  assumed  jurisdiction  to  relieve  against  the  penalty 

1  3  Bl.  Comm.  434. 


§§    45-47)  LIQUIDATED    DAMAGES    AND    PENALTIES.  125 

when  the  obligor  was  prevented  by  accident  from  fulfilling  his  ob- 
ligation on  the  da}-  fixed.  This  it  did  by  enjoining  the  execution  of 
the  judgment  for  the  penalty,  on  condition  that  the  obligor  would 
do  equity  by  paying  the  real  debt,  with  interest  for  its  detention, 
and  costs.  Subsequently  equity  extended  its  jurisdiction,  and  re- 
lieved against  the  penalty  in  all  cases  of  default,  from  whatever 
cause,  on  the  payment  of  just  compensation.  This  was  on  the  broad 
principle  that  compensation,  not  forfeiture,  is  equity.  This  prac- 
tice was  ultimately  followed  by  courts  of  law,  and  was  finally  sanc- 
tioned by  statute.  Such  statutes  are  in  force  generally  in  the  Unit- 
ed States.  But  it  would  seem  that  courts  of  law  have  power  to 
grant  such  relief  on  general  principles,  without  reference  to  statutes. - 
Although  the  damages  in  an  action  on  a  penal  bond  may  be  less 
than  the  penalty  named,  as  just  explained,  they  can  never  be  great- 
er. This  was  because  such  bond  contained  no  agreement  to  pay  the 
smaller  sum  or  perform  the  stipulated  act.  The  only  promise  or 
undertaking  was  to  pay  the  penal  sum  in  default  of  performance  of 
the  condition.  Hence  at  common  law  no  action  could  be  maintained 
except  for  the  penal  sum,  and  of  course  the  damages  could  never  ex- 
ceed that  sum. 

LIQUIDATED  DAMAGES  AND  PENALTIES. 

45.  Liquidated  damages  are  damages  agreed  upon  by  the 

parties  as  and  for  compensa.tion  for,  and  in  lieu  of, 
the  actual  damages  arising  from  a  breach  of  con- 
tract.^ 

46.  A  penalty  is  a  sum  agreed  to  be  paid  or  forfeited  ab- 

solutely upon  nonperformance  of  the  contract,  re- 
gardless of  the  actual  damages  suffered,  and  intended 
rather  to  secure  performance,  than  as  compensa- 
tion for  a  breach. 

47.  Where  the  parties  to  a  contract  agree  upon  liquidated 

damages,  the  sum  fixed  is  the  measure  of  damages 

2  Betts  V.  Burch,  4  Hurl.  &.  X.  'Mi.     See  2  White  &  T.  Lead.  Cas.  lOq.  (-itb 
En«.  Ed.)  lOOS. 
8  Dwinel  v.  Biuuu,  54   Mo.  4US,  471,  per  AjiplLloii,  (J.  J.,  (lissciitin^'. 


124         BONDS LIQUIDATED  DAMAGES ALTERNATIVE  CONTKACTS.       (Ch     4 

for  a  breach,  -whether  it  exceeds  or  falls  short  of 
the  actual  damages;  but,  -where  the  sum  fixed  is  a 
penalty,  the  actual  damages  suffered,  -whether  m.ore 
or  less,  may  be  recovered. 

Intent  of  the  Parties. 

In  making  contracts,  the  parties  are  at  perfect  liberty  to  stipulate 
for  liquidated  damages  to  be  paid  b^'  one  party  to  the  other  as  com- 
pensation for  a  breach.  On  the  happening  of  a  breach,  the  stip- 
ulated sum  is  the  precise  sum  to  be  recovered,  be  the  actual  dam- 
ages more  or  less.  Equity  will  not  relieve  against  it*  To  have 
this  elYect,  it  is,  of  course,  primarily  essential  that  the  parties  so 
intended.  If  they  clearly  did  not  intend  to  liquidate  the  damages, 
no  question  arises  in  this  connection,  and  the  actual  damages  will 
be  assessed  on  ordinary  principles.  But,  where  the  contract  ex- 
presses an  intention  that  a  certain  sum  shall  be  payable  absolutely 
upon  a  breach,  there  is  great  difficulty,  and  the  courts  have  fallen 
into  much  confusion,  in  determining  whether  the  sum  fixed  is  liqui- 
dated damages,  to  be  enforced,  or  a  penalty,  to  be  relieved  against. 
It  is  frequently  said  to  be  solely  a  matter  of  intention.  A  court  of 
law  possesses  no  dispensing  power;  it  cannot  inquire  whether  the 
parties  have  acted  wisely  or  rashly  in  respect  to  any  stipulation 
they  may  have  thought  proper  to  introduce  into  their  agreements. 
If  they  are  competent  to  contract,  within  the  prudential  rules  the 
law  has  fixed  as  to  parties,  and  there  has  been  no  fraud,  circum- 
vention, or  illegality  in  the  case,  the  court  is  bound  to  enforce  the 
agreement*  "The  law  relative  to  liquidated  damages  has  always 
been  in  a  state  of  great  uncertainty.  This  has  been  occasioned  by 
judges  endeavoring  to  make  better  contracts  for  parties  than  they 
have  made  for  themselves.  I  think  that  the  parties  to  contracts, 
from  knowing  exactly  their  own  situations  and  objects,  can  better 
appreciate  the  consequences  of  their  failing  to  obtain  those  objects 
than  either  judges  or  juries.  Whether  the  contract  be  under  seal 
or  not,  if  it  clearly  states  what  shall  be  paid  by  the  party  who  breaks 

*  In  an  action  to  recover  a  sum  stipulated  in  a  contract  as  liquidated  dam- 
ages, no  proof  of  actual  damages  is  required.  Sanford  v.  First  Nat.  Bank  of 
Belle  Plaine  (Iowa)  63  N.  W.  459. 

*  Kemp  V.  Knickerbocker  Ice  Co..  69  N.  Y.  45. 


§§    45-47)  LIQUIDATED    DAMAGES    AND    PENALTIES.  125 

it,  to  the  party  to  whose  prejudice  it  is  broken,  the  verdict  in  the 
action  for  the  breach  of  it  should  be  for  the  stipulated  sum.  A 
court  of  justice  has  no  more  authority  to  put  a  different  construc- 
tion on  the  part  of  the  instrument  ascertaining  the  amount  of  dam- 
ages than  it  has  to  decide  contrary  to  any  other  of  its  clauses."  ' 
But  the  weight  of  authority  will  not  support  this  language,  in  the 
broad  sense  in  which  it  is  used.  Where  the  contract  has  expressly 
designated  the  amount  named  as  liquidated  damages,  the  courts 
have  held  often  that  it  was  a  penalty,  and  relieved  against  it;  and 
conversely,  where  the  contract  has  called  it  a  penalty,  it  has  been 
held  to  be  liquidated  damages;  and,  even  where  the  parties  have 
manifestly  supposed  and  intended  that  an  exorbitant  and  uncon- 
scionable amount  should  be  forfeited,  the  courts  have  carried  out 
the  intent  only  so  far  as  was  right  and  reasonable.^  Contracts  in 
terms  providing  for  "liquidated  damages,"  and  expressly  exclud- 
ing all  idea  of  a  penalty,  have  nevertheless  been  construed  to  pro- 
vide for  a  penalty.'^  This  has  been  said  to  be  on  the  ground  that 
the  parties  had  given  a  wrong  name  to  the  stipulated  sum,  and  that 
it  was,  in  substance  and  in  fact,  a  penalty,  and  not  liquidated  dam- 
ages.' In  another  case  it  was  said  that  where  the  parties  declare, 
in  distinct  and  unequivocal  terms,  that  they  have  settled  and  as- 
certained the  damages  to  be  a  certain  fixed  sum  to  be  paid  by  the 
party  failing  to  perform,  it  seems  absurd  for  the  court  to  tell  them 
that  it  has  looked  into  the  contract,  and  reached  the  conclusion  that 
no  such  thing  was  intended,  but  that  the  intention  was  to  name  a 
sum  as  a  penalty  to  cover  any  damages  that  might  be  proved  to  have 
been  sustained  by  a  breach  of  the  agreement.®     The  cases  are  in 

e  Crisdee  v.  Bolton,  3  Car.  &  P.  240,  per  Best,  C.  J.  See,  also,  Dwinel  v. 
Brown,  54  Me.  4GS;  Brewster  v.  Edgerly,  13  N.  H.  275;  Clement  v.  Cash,  21 
N.  Y.  253;    Yetter  v.  Hudson,  57  Tex.  U04. 

6  Davis  V.  U.  S.,  17  Ct.  CI.  201,  215. 

"  In  Kerable  v.  Farren,  6  Bing.  141,  the  contract  provided  for  the  pa.vuiont 
of  a  iixed  sum  as  "liquidated  and  ascertained  damages,  and  not  a  penal  sum. 
or  in  the  nature  thereof";  but  it  was  held  that  the  sum  named  was  a  pen- 
altj'.  See,  also,  Monnioutli  P.'irlc  Ass'n  v.  Wnrn-ii,  55  X.  J.  Law,  5!>.S,  27  .'X-ti. 
'.y.V2. 

"•  LMiiipirian  v.  Cochran.  I'l  N.  V.  275. 

»  Clement  v.  Cash,  21  N.  V.  25.'5.    And  scf  Itolfc  v.  I'dcixm,  2  l!r<i\vii.  I'nil 
Cas    430. 


126         BONDS — LIQUIDATED  DAMAGES ALTERNATIVE  CONTRACTS.        (Cll.    4 

great  confiisioii,  but,  as  lias  been  said,  "while  no  one  can  fail  to  dis- 
cover a  very  great  amount  of  conflict,  still  it  will  be  found  on  ex- 
amination that  most  of  the  cases,  however  conflicting  in  appearance, 
have  yet  been  decided  according  to  the  justice  and  equity  of  the 
particular  case."  ^°  The  whole  difliculty  lies  in  the  failure  to  note 
the  distinction  between  an  intent  to  really  liquidate  the  damages, 
and  an  intent  that  the  sum  named  should  be  paid  at  all  events.  Li- 
quidated damages  are  simply  an  estimate  of  the  actual  damages 
made  in  advance  by  the  parties  themselves,  and  agreed  to  be  paid. 
A  bona  fide  intent  to  liquidate  the  damages  is  always  controlling, 
but  a  mere  intent  that  the  sum  named  shall  be  paid  at  all  events 
will  be  disregarded  unless  the  sum  fixed  be  in  fact  liquidated  dam- 
ages, and  not  a  penalty.  Liquidated  damages  must  be  estimated 
on  a  basis  of  just  compensation,  and  substantially  limited  to  it,  or 
the  sum  fixed  becomes  a  penalty,  no  matter  by  what  name  it  is 
called.  Parties  cannot  make  what  is,  in  its  very  nature,  a  penalty, 
stipulated  damages  by  merely  calling  it  so.  ''They  would  thus  be 
simply  changing  the  names  of  things,  and  enforcing,  under  the  name 
of  stipulated  damages,  what,  in  its  own  nature,  is  but  a  penalty."  " 
''Just  compensation  for  the  injury  sustained  is  the  principle  at  which 
the  law  aims,  and  the  parties  will  not  be  permitted,  by  express  stip- 
ulation, to  set  this  principle  aside."  ^^  In  determining  whether  the 
parties  intended  to  liquidate  the  damages,  the  inquiry  must  always 
be  as  to  whether  th6  sum  is  in  fact  in  the  nature  of  a  penalty;  and 
this  is  to  be  determined  by  the  magnitude  of  the  sum,  in  connec- 
tion with  the  subject-matter,  -and  not  at  all  by  the  language  used, 
or  the  intention  that  it  should  be  actually  paid.  For  example,  if 
the  parties  should  stipulate  that,  upon  failure  to  deliver  a  box  of 
cigars  on  a  day  named,  |1,000  should  be  paid  "as  liquidated  dam- 
ages, and  not  as  a  penalty,"  it  would  be  absurd  to  say  that  they 
intended  to  liquidate  the  damages,  and  did  not  intend  to  fix  a  pen- 
alty, their  language  to  the  contrary  notwithstanding.  The  language 
used  merely  imparts  an  intention  that  the  sum  named  shall  be  paid. 
Liquidated  damages  must  be  intended  as  compensation  for  losses 
arising  from  a  breach,  or  they  are  not  liquidated  damages.     Clearly, 

10  Jaquith  v.  Hudson,   5  Mich.   123,   133. 

11  Jaquitb  v.  Hudson.  5  Mich.  123,  136. 

12  Myer  v.  Hart.  40  Mich.  517,  523. 


§§    48-50)  RULES    OF    CONSTRUCTION.  127 

the  §1,000  was  not  intended  as  compensation.  While  courts  of  law 
gave  the  penalty  of  a  bond,  the  parties  intended  that  the  penalty 
should  be  paid,  as  much  as  they  now  intend  the  payment  of  liqui- 
dated damages,  but  it  was  nevertheless  relieved  against  in  equity, 
and  the  same  jurisdiction  is  now  exercised  by  courts  of  law.  This 
jurisdiction  is  not  confined  to  relieving  against  penalties  in  bonds, 
but  extends  to  penalties  in  other  forms  of  contracts  as  well.  In  short, 
stipulations  for  the  payment  of  liquidated  damages  will  be  enforced; 
stipulations  for  the  payment  of  penalties  will  not,  no  matter  by  what 
name  they  are  called. 

It  must  be  noted  that  either  party,  the  plaintiff  as  well  as  the 
defendant,  has  the  right  to  show  that  the  stipulated  sum  is  a  pen- 
alty, and  not  liquidated  damages.  When  the  performance  of  a  con- 
tract is  secured  by  a  penalty,  the  damages  are  not  limited  by  it,  but 
may  be  either  greater  or  less.  The  actual  damages  are  recover- 
able.^^ Such  contracts  differ  from  penal  bonds  in  that  they  contain 
an  agreement  upon  which  an  action  may  be  maintained,  whereas  in 
penal  bonds  the  only  agreement  is  to  pay  the  penalty. 

SAME— RULES  OF  CONSTRUCTION. 

48.  An  intention  to  liquidate  the  damages  is  controlling-. 

In  seeking  to  ascertain  the  real  intent,  the  courts 
lean  strongly  towards  a  construction  that  the  sum 
fixed  is  a  penalty,  rather  than  liquidated  damages. 
The  language  of  the  parties  is  not  conclusive,  and 
-will  be  strictly  construed  (p.  129). 

49.  Where  the   stipulated  sum  is  wholly  collateral  to  the 

object  of  the  contract,  and  is  evidently  inserted  in 
terrorem  as  security  for  performance,  it  will  be 
construed  to  be  a  penalty  (p.  130). 

60.  Where  the  stipulated  sum  is  to  be  paid  on  the  nonpay- 
ment of  a  less  amount,  or  on  failure  to  do  some- 
thing of  less  value,  it  will  generally  be  construed 
to  be  a  penalty  (p.  131). 

18  Noycs  V.  Phillips,  W  N.  Y.  -lUS. 


128         BONDS LIQUIDATED  DAMAGES ALTKIiN ATI VE  CONTRACTS,       (Ch.   4 

51.  Where  the  stipulated  sum  is  to  be  paid  on  breach  of  a 
contract  of  such  a  nature  that  the  damages  arising 
from  a  breach  may  be  either  much  greater  or  much 
less  than  the  sum  fixed,  it  will  be  construed  to  be 
a  penalty  (p.  132). 

62.  Where  the  stipulated  sum  is  to  be  paid  on  the  breach 

of  a  contract  of  such  a  nature  that  the  damages 
resulting  from  a  breach  w^ould  be  uncertain,  and 
incapable  or  difficult  of  being  estimated  by  any 
definite  standard,  it  -will  generally  be  construed  to  be 
liquidated  damages,  if  reasonable  in  amount  (p.  133). 

63.  Where  the  stipulated  sum  is  to  be  paid  on  the  breach 

of  a  contract  of  such  a  nature  that  the  damages 
arising  from  a  breach  are  capable  of  exact  meas- 
urement by  a  definite  standard,  the  sum  fixed,  if 
materially  variant  from  the  actual  damages,  w^ill 
usually  be  regarded  as  a  penalty;  but  where  such 
sum  is  fixed  to  cover  contemplated  consequential 
losses,  not  recoverable  under  legal  rules,  and  is  not 
more  than  a  reasonable  compensation  therefor,  it 
may  be  sustained  as  liquidated  damages  (p.  137). 

54.  Where   the   contract   provides  that  a  certain  sum,  de- 

posited to  secure  performance,  shall  be  forfeited  for 
nonperformance,  the  sum  deposited,  if  reasonable 
in  amount,  will  be  construed  to  be  liquidated  dam- 
ages (p.  138). 

55.  Where  the  stipulated  sum  is  to  be  paid  on  any  breach 

of  a  contract  containing  several  stipulations  of 
widely  different  degrees  of  importance,  it  is  usually 
held  to  be  a  penalty  (p.  138). 

56.  A  sum  stipulated  to  be  paid  upon  a  breach  of  contract 

cannot  be  recovered  as  liquidated  damages  upon  a 
partial  breach,  w^here  the  other  party  has  accepted 
part  performance  (p.  140). 

57.  A  sum  stipulated  to   be  paid  in  evasion  of  the  usury 

law^s  will  be  regarded  as  a  penalty  (p.  141). 


§§    48-57)  RULES    OF    CONSTRUCTION.  129 

General  Rule  of  Construction — Form  of  Contract. 

An  agreement  to  liquidate  damages  is  always  controlling,  and 
courts  and  juries  are  confined  to  the  sum  fixed  in  assessing  damages 
for  a  breach.  But  the  intent  must  be  to  liquidate  damages  in  the 
technical  sense  already  explained.  A  mere  intent  that  the  sum  fixed 
shall  be  paid,  however  strongly  expressed,  is  insufficient.  If  the 
parties,  in  assessing  their  own  damages,  disregard  the  fundamental 
principle  that  damages  are  a  compensation  for  losses  sustained,  the 
sum  fixed  is  not  liquidated  damages.*  It  is  intrinsically  a  penalty, 
and  the  parties  cannot  make  it  anything  else  by  giving  it  a  different 
name,  and  stipulating  that  it  shall  be  paid.  ^Mien  the  sum  fixed, 
however,  is  not  an  unreasonable  compensation  for  a  breach,  the  ques- 
tion remains  whether  it  was  intended  as  liquidated  damages  or  a 
penalty.  This  is  a  question  of  law  for  the  court.  This  intent  must 
be  ascertained  from  the  language  used,  interpreted  in  the  light  of 
surrounding  circumstances.  The  use  of  the  words  "penalty"  or  "for- 
feit," on  the  one  hand,  or  "liquidated  damages,"  on  the  other,  is 
not  conclusive.  Nevertheless,  the-  language  used  is  a  guide,  and 
may  turn  the  scales  in  doubtful  cases. 

There  are  four  forms  of  contracts  in  which  the  question  under 
discussion  is  usually  presented. 

First  The  contract  may  be  to  do  or  refrain  from  doing  a  partic- 
ular thing,  or,  in  the  alternative,  to  pay  a  stipulated  sum  of  money. 
If  it  w^as  really  intended  to  give  the  party  an  option  to  do  the 
thing  or  pay  the  money,  the  stipulated  sum  cannot  properly  be  called 
either  a  penalty  or  liquidated  damages.  If  the  party  perform  either 
alternative,  the  contract  is  not  broken,  and  the  question  under  dis- 
cussion does  not  arise.  Nevertheless,  this  form  of  contract  may  be 
but  a  cloak  to  cover  a  penalty,  in  which  case  the  court  will  relieve 
against  it.     Prima  facie,  however,  it  is  an  alternative  contract.^* 

Second.  The  contract  may  be  in  the  form  of  a  common-law  bond. 
In  this  form  of  contract  the  real  object  of  the  parties  is  expressed 
in  the  condition.  There  is  no  express  promise  to  do  anything,  but 
performance  is  secured  under  pain  of  the  penalty.     Prima  facie,  the 

*  Doane  v.  Railway  Co.,  01  111.  App.  353;    CouUou  v,  Keuiper,  47  Kan.  12C, 
27  Pac.  829. 
1*  See  post,  p.  141 

LAW  DAM.— 9 


130         BONDS LIQUIDATED  DAMAGKS ALTERNATIVE  CONTRACTS.       (Ch.    4 

sum  stipulated  in  a  bond  is  a  penalty;  but,  nevertheless,  it  has 
sometimes  been  hold  to  be  liquidated  damages.^ ^ 

Third.  The  contract  may  bind  the  parties  to  do  or  refrain  from 
doing  a  certain  thing,  and  provide  that,  in  case  of  default,  a  certain 
sum  shall  be  paid  as  a  penalty.  Prima  facie,  the  sum  named  in 
this  class  of  contracts  is  a  penalty;  Taut  the  presumption  is  not  so 
strong  as  in  the  case  of  bonds,  and  it  has  been  frequently  held  to 
be  liquidated  damages.^® 

Fourth.  The  agreement  may  be  in  the  same  form  as  the  last,  ex- 
cept the  stipulated  sum  is  called  "liquidated  damages"  or  a  "for- 
feiture." This  language  will  be  given  its  literal  effect  only  where 
the  sum  named  is  in  fact  reasonable  compensation  for  a  breach.  In 
that  case  it  would  probably  overcome  the  leaning  of  the  courts  to- 
wards construing  all  such  stipulations  to  provide  for  penalties.  In 
all  other  cases  it  would  nevertheless  be  held  to  be  a  penalty.  Stip- 
ulations for  liquidated  damages  are  strictly  construed.^^ 

Collateral  Sum  in  Terror  em. 

Where  the  sum  stipulated  to  be  paid  upon  a  breach  of  contract 
is  wbolly  collateral  to  the  object  of  the  contract,  and  is  so  excessive 
as  to  show  clearly  that  it  was  not  fixed  on  a  basis  of  compensation, 
it  is  evident  that  it  was  inserted,  in  terrorem,  to  secure  perform- 
ance, and  it  therefore  falls  within  the  definition  of  "penalty"  given 
in  the  black  letter  text.  The  ordinary  penal  bond  is  an  illustra- 
tion of  this  class  of  cases.  Such  bonds  are  given  to  secure  a  variety 
of  agreements,  such  as  to  submit  to  arbitration,  ^^  to  convey  land,  ^® 
or  to  faithfully  perform  the  duties  of  an  office.  The  penalty  is  usual- 
ly fixed  at  twice  the  estimated  actual  damages  likely  to  result  from 
a  breach.  Where  defendant  agreed  to  let  plaintiff  have  the  use  of 
a  certain  building  so  long  as  it  stood,  and  gave  him  a  note  payable 

iBStudabaker  v.  White,  31  Ind.  212;  Fisk  v.  Fowler,  10  CaL  512;  Duffiy  v. 
Shockey,  11  Ind.  70;   Clark  v.  Barnard,  108  U.  S.  43G,  453,  2  Sup.  Ct.  878. 

16  Suth.  Dam.  §  284. 

17  Grand  Tower  Min.  Manuf'g  &  Transp.  Co.  v.  Phillips,  23  Wall.  471; 
Hamilton  v.  Moore,  33  U.  C.  Q.  B.  520. 

18  Henry  v.  Davis,  123  Mass.  345.  The  same  rule  is  applied  to  an  ordinary 
contract.     Spear  v.  Smith,  1  Denio,  464;   Henderson  v.  Cansler,  65  N.  C.  542. 

19  Brown  v.  Bellows,  4  Pick.  179;  Robeson  v.  Whitesides,  16  Serg.  &  K. 
320;    Burr  v.  Todd,  41  Pa.  St.  206. 


§§    48-57)  RULES    OF    CONSTRUCTION.  131 

upon  a  breach,  it  was  held  to  be  a  penalty.^"     An  agreement  to  re- 
turn a  lease  loaned  within  a  certain  time,  or  in  default  thereof  to 
pay  |3,000,  was  held  to  pro\ide  for  a  penalty,  as  the  sum  named 
was  wholly  collateral  to  the  object  of  the  contract.^ ^ 
Sum  Payable  on  Nonpayment  of  Smaller  Sum. 

"Where  a  large  sum,  which  is  not  the  actual  debt,  is  agreed  to  be 
paid  in  case  of  a  default  in  the  payment  of  a  less  sum,  which  is  the 
real  debt,  such  larger  sum  is  always  a  penalty."  *^  This  is  because 
it  is  evident  that  the  principle  of  compensation  has  been  departed 
from.  But  where  the  larger  sum  is  the  real  debt,  and  the  debtor  has 
simply  an  option  to  discharge  it  by  the  payment  of  a  less  sum,  if 
paid  at  a  particular  term  or  in  a  specified  manner,  upon  failure  to 
pay  the  smaller  sum  at  the  time  and  in  the  manner  specified,  pay- 
ment of  the  larger  sum  may  be  enforced.-^  In  such  a  case,  the  ques- 
tion under  discussion  does  not  properly  arise.  The  parties  have  not 
intended  to  stipulate  for  either  liquidated  damages  or  a  penalty. 
The  contract  is  in  fact  an  alternative  one.  The  real  intent  of  the 
parties  is  the  decisive  thing.  No  form  of  words  can  be  used  which 
will  cloak  a  penalty.     "Although,  as  a  general  rule,  it  is  acknowl- 

20  Merrill  v.  Merrill,  15  Mass.  488. 

21  Burrage  v.  Crump,  3  Jones    (N.  C.)  330. 
2  2  Suth.  Dam.  §  288. 

23  Mayne,  Dam.  §  166;  Suth.  Dam.  §  288;  Thompson  v.  Hudson,  L.  R.  4  H. 
L.  1,  L.  R.  2  Eq.  612;  Ashtown's  Lessee  v.  White,  11  Ir.  Law  R.  400;  McNitt 
V.  Clark,  7  Johns.  465;  Carter  v.  Corley,  23  Ala.  612;  Berriukatt  v.  Traphagen, 
39  Wis.  219.  But  see  Longworth  v.  Askren,  15  Ohio  St.  370.  We  regard  this 
decision  as  unsound.  A  note  providing  that  it  may  be  discharged  by  payment 
of  a  sum  less  than  its  face,  if  paid  before  maturity,  is  valid;  and  the  larger 
sum  is  not  a  penalty.  Jordan  v.  Lewis,  2  Stew.  (Ala.)  426;  Carter  v.  Corley, 
23  Ala.  G12;  Waggoner  v.  Cox,  40  Ohio  St.  539,  543;  Campbell  v.  Shields,  ti 
Leigh  (Va.)  517.  Contra,  Moore  v.  Hylton,  1  Dev.  Eq.  (N.  C.)  429.  A  provi- 
sion in  a  note  that,  if  It  is  not  paid  at  maturity,  a  certain  further  sum  should 
be  paid  as  liquidated  damages  for  delay,  has  been  sustained,  when  such  addi- 
tional amount  was  reasonable.  Sutton  v.  Howard,  33  Ga.  536;  Yetter  v.  Hud- 
son, 57  Tex.  604.  Contra,  Taul  v.  Everet,  4  J.  J.  Marsh.  10;  Brockway  v. 
Clark,  6  Ohio,  45.  Where  a  note  provides  that  it  shall  bear  Interest  from  date 
if  not  paid  at  maturity,  the  accumulated  interest  may  be  recovered  as  liqui- 
dated damages  on  nonpayment  at  maturity.  Reeves  v.  Stipp,  91  111.  609;  Wil- 
son V.  Dean,  10  Iowa,  432;  Rogers  v.  Sample,  33  Miss.  310.  Contra,  Waller 
V.  Long,  G  Munf.   71. 


lo2         BONDS I.IQHIDATKD  DAMAGES ALTliRNATIVR  CONTRACTS.        (Ch.  4 

edged  that  the  intention  of  the  parties,  as  expressed  in  the  contract,, 
should  be  enforced,  still  it  is  clearly  ignored  in  that  class  of  eases^ 
where  the  parties  stipulate  for  the  payment  of  a  large  sum  of  money^ 
for  the  nonpayment  of  a  smaller  sum  at  a  given  day.  In  such  cases,, 
it  is  said,  no  matter  what  may  be  the  language  of  the  parties,  the 
larger  sum  will  be  deemed  a  penalty."  ^*  The  intrinsic  nature  of 
the  transaction  governs,  -^  and  evidence  of  surrounding  circumstan- 
ces is  admissible  to  show  the  real  intent,  "though  the  words  are  to 
,  be  taken  as  proved  exclusively  by  the  writing."  -* 

S^nn  Stipulated  not  Proporlioned  to  Injury. 

Where  the  actual  damages  arising  from  a  breach  may  be  either 
greatly  more  or  greatly  less  than  the  stipulated  sum,  according  tO' 
the  time  of  the  breach,  such  sum  will  usually  be  regarded  as  a  pen- 
alty. Thus,  it  was  said,  in  a  Michigan  case:^^  "The  plaintiffs  in> 
error  were  to  have  |1.50  per  ]VI.  for  drawing  the  timber,  $1  of  whicb 
was  to  be  paid  as  the  timber  was  drawn,  *  *  ♦  and  the  re- 
maining 50  cents  in  cash  when  all  the  timber  was  drawn.  In  the- 
language  of  the  contract  'it  being  understood  that  the  balance  kept 
back  is  to  secure  the  completion  of  this  contract;  and  it  is  hereby 
agreed  between  the  parties  that  the  fifty  cents  per  thousand  feet  is 
settled,  fixed,  and  liquidated  damages.  *  *  *'  They  Laving  fail- 
ed to  draw  all  the  timber,  the  question  is  whether  the  50  cents  per 
1,000  feet  on  what  was  drawn,  and  which  was  to  be  paid  on  com- 
pletion of  the  contract,  is  to  be  regarded  as  stipulated  damages, 
or  in  the  nature  of  a  forfeiture  or  penalty  for  not  completing  the 
contract.  The  court  below  charged  the  jury  that  the  50  cents  per 
1,000  feet  t)n  what  had  been  drawn  was  stipulated  damages.  In 
this  we  think  the  court  erred.  If  stipulated  damages  for  nonper- 
formance of  the  entire  contract,  the  defendant  could  not  recover  any 
other  or  greater  damages  for  a  nonperformance  in  whole  or  in  part. 
And  it  would  follow  that  he  would  recover  no  damages  whatever 
on  the  contract  had  the  plaintiff  in  error  refused  to  draw  any  of 

2  4    Morris  v.  McCoy,  7  Nev.  399. 

2BBrytoa  v.  Marston,  aS  111.  App.  211;  Bagley  v.  Peddle,  5  Sandf.  192;. 
Nlver  V.  Rossman,  18  Barb.  50. 

26  Foley  V.  McKeegan,  4  Iowa,  1,  5;  Perkins  v.  Lyman,  11  Mass.  7G;; 
Brewster  v.  Edgerly.  13  N.  H.  275. 

aT  Davis  v.  Freeman,  10  Mich.  1S8. 


•5;§   48-57)  RULES    OF    CONSTRUCTION.  133 

the  timber.  Such,  clearly,  could  not  have  been  the  intention  of  the 
parties.  They  must  have  intended  that,  if  the  plaintiff  in  error 
should  draw  part  of  the  timber,  and  not  the  whole,  they  should  not 
be  paid  the  50  cents  per  1,000  feet  on  what  had  been  drawn  by  them. 
That,  in  the  language  of  the  contract,  should  be  'fixed  and  liquidated 
■damages,'  If  the  contract  had  provided  for  the  payment  of  50  cents , 
per  1,000  feet  as  liquidated  damages  for  the  timber  not  drawn,  the 
-case  would  be  altogether  different.  For  the  nearer  such  contract 
was  completed,  the  less  would  be  the  damages.  The  damages  would 
be  proportioned  to  the  nonperformance.  But  the  contrary  would  be 
the  case,  as  the  contract  is,  if  the  50  cents  per  1,000  Is  to  be  re- 
garded as  liquidated  damages,  and  not  as  a  penalty;  for,  the  nearer 
the  contract  is  completed,  the  greater  are  the  damages  In  case  of 
failure.  *  *  *  The  policy  of  the  law  will  not  permit  parties  to 
make  that  liquidated  damages,  by  calling  it  such  in  their  contract, 
■which  in  its  nature  is  clearly  a  penalty  or  forfeiture  for  nonperform- 
ance. While  it  allows  them,  in  certain  cases,  to  fix  their  own  dam- 
ages, it  will  in  no  case  permit  them  to  evade  the  law  by  agreement." 
Contracts  providing  that  an  employ^  shall  forfeit  all  wages  due  him 
if  he  wrongfully  quits  the  service,  belong  to  this  class  of  cases  and 
will  be  regarded  as  stipulating  for  a  penalty.^'  And,  generally, 
where  a  contract  provides  for  payment  in  installments,  and  stip- 
ulates that  a  certain  proportion  shall  be  retained  from  each  install- 
ment, the  whole  to  be  forfeited  upon  a  breach,  the  sum  retained  is 
<-onsidered  a  penalty.'^® 
Stipulated  Sum  where  Damciges  are  Uncertain. 

Where  the  damages  resulting  from  a  breach  of  contract  cannot  be 
measured  by  any  definite  pecuniary  standard,  as  by  market  value 
or  the  like,  but  are  wholly  uncertain,  the  law  favors  a  liquidation  of 
the  damages  by  the  parties  themselves;  and  where  they  stipulate 
for  a  reasonable  amount,  it  will  be  enforced.     But,  even  if  the  dam- 

28  KieLardson  v.  Woeliler,  2G  Mich.  90. 

29  Savannah  &.  C.  R.  Co.  v.  Callahan,  5G  Ga.  331;  Jemmison  v.  Gray,  2i) 
Iowa,  537;  Potter  v.  McPherson,  61  Mo.  240;  Dullaghan  v.  Fitch,  42  Wis, 
<j79;  .Tackson  v,  Cleveland,  19  Wis,  400,  But  where  the  sum  was  not  ex- 
•cessive,  It  has  been  allowed  as  liquidated  damages.  See  Elizabethtowu  &  F. 
R,  Co,  V.  Gcogliogan,  9  Busli,  GG;  Geiger  v.  Kailmad  Co,,  41  Md,  4;  Eastou  v. 
rennsylv;iiii:i  <t  O.  (';iii;il  ("o.,  13  Ohio,  7i), 


J  34         BOKDS LIQUIDATED  DAMAUKS ALTERNATIVE  CONTRACTS.        (Ch.   4 

ages  are  uncertain,  if  there  is  a  glaring  disproportion  between  the 
sum  agreed  to  be  paid  in  default  of  performance,  and  the  probable 
advantages  of  performance,  it  will  be  deemed  a  penalty.  Here,  as 
in  all  cases  the  facts  of  the  transaction  must  not  negative  an  in- 
tention to  fix  a  sum  which  would  be  reasonable  compensation.  The 
uncertainty  spoken  of  must  be  as  to  the  actual  nature  and  extent  of 
the  damage;  not  as  to  the  legal  measure  to  be  applied.  Stipula- 
tions for  liquidated  damages  have  been  upheld  in  actions  for  breach 
of  marriage  promise,  ^°  breach  of  contract  for  the  sale  of  property 
of  uncertain  value,  '^  breach  of  agreement  not  to  carry  on  busi- 
ness, ^'  delay  in  the  performance  of  contracts,  ^^  failure  to  abate  a 

80  Lowe  V.  Peers,  4  Burrows,  2225;   Abrams  v.  Kounts,  4  Ohio,  214. 

81  Gammon  v.  Howe,  14  Me.  250;  Chamberlain  v.  Bagley,  11  N.  H.  234; 
Mead  v.  Wheeler,  13  N.  H.  351;  Main  v.  King,  10  Barb.  59;  Streeper  v. 
Williams,  48  Pa.  St.  450;  Durst  v.  Swift,  11  Tex.  273;  Yenner  v.  Hammond, 
36  Wis.  277;  Burk  v.  Dunn,  55  111.  App.  25.  This  rule  was  applied  to  a  con- 
tract to  exchange  farms  which  provided  that  the  party  failing  to  perform 
should  "forfeit  and  pay  as  damages"  a  fixed  sum.  and  the  sum  was  held 
liquidated  damages.  Gobble  v.  Linder,  76  111.  157.  In  New  York  it  is  held 
that  the  damages  for  breach  of  an  ordinary  contract  for  the  sale  or  exchange 
of  lands  are  not  uncertain,  and  a  stipulation  for  liquidated  damages  cannot  be 
sustained  upon  this  ground.  Noyes  v.  Phillips,  60  N.  Y.  408;  Richards  v. 
Edick,  17  Barb.  260;  Laurea  v.  Bernauer,  33  Hun,  307.  But  if  the  sum  fixed 
is  reasonable  in  amount,  and  clearly  intended  as  compensation,  it  is  recover- 
able as  liquidated  damages.  Slosson  v.  Beadle,  7  Johns.  72;  Hasbrouck  v. 
Tappen,  15  Johns.  200;  Knapp  v.  Maltby,  13  Wend.  587.  Otherwise  not. 
Dennis  v.  Cummins,  3  Johns.  Cas.  297.  Where  a  grantor  agreed,  in  case  the 
grantee  was  evicted,  to  refund  the  consideration  with  interest,  that  sum  was 
held  to  be  liquidated  damages.  Bradshaw  v.  Craycroft,  3  J.  J.  Marsh.  77. 
An  interest  in  a  partnership  is  sufficiently  uncertain  in  value  to  sustain  a 
stipulation  for  liquidated  damages.  Maxwell  v.  Allen,  78  Me.  32,  2  Atl.  3St>; 
Lynde  v.  Thompson,  2  Allen,  456.  For  failure  to  purchase  a  business  a.«i 
agreed.  $25,000  was  held  to  be  liquidated  damages.  Woodbury  v.  Turner. 
Day  &  Woolworth  Manuf'g  Co.  (Ky.)  29  S.  W.  295. 

32  A  sum  agreed  to  be  paid  upon  breach  of  an  agreement  not  to  carry  on  a 
particular  trade,  business,  or  profession  within  certain  limits  or  within  a 
specified  time  is  nearly  always  regarded  as  liquidated  damages.  Jaquith  v. 
Hudson,  5  Mich.  123;  Tode  v.  Gross,  127  N.  Y.  480,  28  N.  E.  469;  Mott  v. 
Mott,  11  Barb.  127;  Applegate  v,  Jacoby,  9  Dana,  200;  Dakin  v.  Williams,  17 
Wend.  447;    Williams  v.  Dakin,  22  Wend.  210;    DeGroff  v.  American  Lineu- 

33  See  note  33  on  following  page. 


§§    48-57)  RULES    OF    CONSTRUCTION.  135 

nuisance,  ^*  disclosure  of  trade  secrets,  ^"^  and  in  various  otlier 
cases.^^  Anything,  in  fact,  that  tends  to  make  the  damages  difiS- 
cult  to  estimate,  such  as  the  absence  of  witnesses,  or  the  difficulty 

Thread  Co.,  24  Barb.  375,  Nobles  v.  Bates,  7  Cow.  307;  Smith  v.  Smith,  4 
Wend.  46S;  Pierce  v.  Fuller,  S  Mass.  223;  Gushing  v.  Drew,  97  Mass.  445 
(contra,  Perkins  v.  Lyman,  11  Mass.  76);  Mueller  v.  Kleine,  27  111.  App.  473; 
California  Steam  Nav.  Co.  v.  Wright,  6  Cal.  258;  Streeter  v.  Rush,  25  Cal.  67; 
Grasselli  v.  Lowden,  11  Ohio  St.  349;  Newman  v.  Wolf  son,  69  Ga.  764;  Light- 
ner  v.  Menzel,  35  Cal.  452;   Bigony  v.  Tyson,  75  Pa.  St,  157;   Barry  v.  Harris, 

S3  A  stipulation  in  a  building  contract  for  the  payment  of  a  reasonable  sum 
for  each  day  or  week  the  work  is  delayed  beyond  the  agreed  time  will  be 
sustained  as  liquidated  damages  for  the  delay.  Fletcher  v.  Dyche,  2  Term 
R.  32;  Legge  v.  Harlock,  12  Q.  B.  1015;  Crux  v.  Aldred,  14  Wkly.  Rep.  65U; 
Hennessy  v.  Metzger,  152  III.  505,  38  N.  E.  1058;  Mueller  v.  Kleine,  27  111. 
App.  473;  CurUs  v.  Brewer,  17  Pick.  513;  Folsom  v.  McDonough,  6  Cush. 
208;  Hall  v.  Crowley,  5  Allen,  304;  Bridges  v.  Hyatt,  2  Abb.  Prac.  449; 
O'Donnell  v.  Rosenberg,  14  Abb.  Prac.  (N.  S.)  59;  Farnham  v.  Ross,  2  Hall, 
107;  Weeks  v.  Little,  47  N.  Y.  Super.  Ct.  1;  Worrell  v.  McClinaglian,  5  Strob. 
115;  Welch  v,  McDonald,  85  Va.  500,  8  S.  E.  711,  Jones  f.  Reg.,  7  Can.  Sup. 
Ct.  570;  Monmouth  Park  Ass'n  v.  Wallis  Iron  Works,  55  N.  J.  Law,  132,  26 
Atl.  140.  Contra,  Wilcus  v.  Kling,  87  111.  107;  Patent  Brick  Co.  v.  Moore, 
75  Cal.  205,  16  Pac.  890  (under  Code  Civ.  Proc.  §  1671);  Brennan  v.  Clark, 
29  Neb.  385,  45  N.  W.  472.  See  Jennings  v.  Miller  (Tex.  Civ.  App.)  32  S.  W. 
24.  Cf.  Mills  V.  Paul  (Tex.  Civ.  App.)  30  S.  W.  558;  Collier  v.  Betterton,  87 
Tex.  440,  29  S.  W.  467.  See.  generally.  Ward  v.  Hudson  River  Bldg.  Co.,  125 
N.  Y.  230,  26  N.  E.  256;  Pettis  v.  Bloomer,  21  How.  Prac.  317;  De  Graff, 
Vrieling  &  Co.  v.  Wickham  (Iowa)  52  N.  W.  503;  O'Brien  v.  Anniston  Pipe- 
Works,  93  Ala.  582,  9  South.  415.  But,  where  the  work  is  abandoned,  the 
.stipulated  sum  cannot  be  recovered  for  an  indefinite  time.  Hahn  v.  Ilorst- 
man,  12  Bush  (Ky.)  249;  Greer  v.  Tweed,  13  Abb.  Prac.  (N.  S.)  427;  Colwell 
V.  Lawrence,  36  How.  Prac.  306.  A  gross  sum  payable  at  once  on  delay  In 
completing  a  building  beyond  a  certain  time,  is  a  penalty.  Tayloe  v.  Saudi- 
ford,  7  Wheat.  13;  Savannah  &  C.  R.  Co.  v.  Callahan,  56  Ga.  331.  Contra, 
Allen  V.  Brazier,  2  Bailey  (S.  C.)  293.  The  sum  fixed  must  be  reasonable 
compensation  for  the  actual  damage.  Clements  v.  Railroad  Co.,  132  Pa.  St. 
445,  19  Atl.  274,  276.  The  principle  applies  to  other  contracts.  Harmony  v. 
ningham,  12  N.  Y.  99;  Walker  v.  Engler,  30  Mo.  130;  Young  v.  White,  5 
Watts  (Pa.)  460;    Bergheim  v.  Steel  Co.,  L.  R.  10  Q.  B.  319. 

»*  Grasselli  v.  Lowden.  11  Ohio  St.  349. 

30  Nessle  v.  Reese,  29  How.  Prac.  382;    Baglej    v.   Peddie,   16  N.   Y.   469; 
Roin.lr.l  v.  Schfll.  4  C  ]'..  (X.  S.)  97. 

88  Sf'o  note  '.'>()  on  foll(j\viiiK  p-'ige. 


136         BONDS LIQUIDATED  D A:\IAGKS ALTKRN ATIVE  CONTRACTS.        (Ch.  4 

of  procuring  testimony,  may  be  considered  as  bearing  upon  the  mo- 
tive in  stipulating  damages.*^ 

49  Vt.  392;  Stevens  v.  Pillsbury,  57  Vt.  203  (Smith  v.  Waiiiwrisiit,  24  Vt.  97, 
overruled);  Stewart  v.  Bedell,  79  Pa.  St.  330  (but  see  Moore  v.  Colt,  127  Pa. 
St.  280,  IS  Atl.  8);  Jobuson  v.  Gwiuu,  100  lud.  406;  Holbrook  v.  Tobey,  OU 
Me.  410;  Cheddick's  Ex'r  v.  Marsh,  21  N.  J.  Law,  463;  Hoaglaud  v.  Sogur. 
38  N.  J.  Law,  230;  Duulop  v.  Gregory,  10  N.  Y.  241.  But  see  Wilcus  v.  Kliug. 
87  111.  107.  In  Wilkinson  v.  Colley,  104  Pa.  St.  35,  30  Atl.  286,  such  a  con- 
tract by  a  pbj^sician  was  held  to  provide  for  a  penalty.  Such  agreements  are 
not  considered  alternative.  Stewart  v.  Bedell,  79  Pa.  St.  330.  Nor  can  the 
stipulation  for  liquidated  damages  be  defeated  on  the  ground  that,  the  con- 
tract being  a  continuing  one,  the  sum  fixed  is  payable  on  any  one  of  various 
breaches  of  different  importance.  Atkyns  v.  Kiunier,  4  Exch.  777;  Gals- 
worthy V.  Strutt,  1  Exch.  059;  Green  v.  Price,  13  Mees.  &  W.  695;  Price  v. 
Green,  16  Mees.  &  W.  340;  Hathaway  v.  Lynn,  75  Wis.  186,  43  N.  W.  956; 
Streeter  v.  Rush,  25  Cal.  67;  Gushing  v.  Drew,  97  Mass.  445;  Grasselli  v. 
Lowden,  11  Ohio  St.  349;  Moore  v.  Colt,  127  Pa.  St.  289,  18  Atl.  8;  Leary  v. 
Laflin.  101  Mass.  334;  Dakin  v.  Williams,  17  Wend.  447;  Spicer  v.  Hoop,  51 
Ind.  305;  Dunlop  v.  Gregoiy,  10  N.  Y.  241;  DufCy  v.  Shockey,  11  Ind.  70. 
In  Little  v.  Banks,  85  N.  Y.  258,  the  defendant  was  the  publisher  of  the  New 
York  Court  of  Appeals  Reports.  He  had  contracted  to  keep  them  for  sale,  and 
to  sell  to  dealers  as  required;  and  $100  was  stipulated  to  be  paid  as  liquidated 
damages  for  a  breach.  It  was  held  that  this  sum  could  be  recovered  for  a 
breach,  though  the  actual  damages  for  failure  to  deliver  a  single  copy  might 
be  very  much  less  than  a  failure  to  deliver  a  larger  number. 

38  A  stipulation  liquidating  the  damages  for  the  total  loss  of  a  bargain  for 
the  purchase  or  lease  of  lands  will  be  enforced.  Leggett  v.  Insurance  Go., 
.50  Barb.  616,  53  N.  Y.  394;  Heard  v.  Bowers,  23  Pick.  455;  Tingley  v.  Cut- 
ler, 7  Conn.  291;  Knapp  v.  Maltby,  13  Wend.  587;  Slosson  v,  Beadle,  7 
.Johns.  72;  Lynde  v.  Thompson,  2  Allen,  456;  Lampman  v.  Cochran,  19  Barb. 
388,  16  N.  Y.  275;  Mundy  v.  Culver,  18  Barb.  336;  Clement  v.  Cash,  21  N.  Y. 
253;  Hasbrouck  v.  Tappen.  15  Johns.  200.  Or  of  persoual  property.  Pierce  v. 
Young,  10  Wis.  30;  Allen  v.  Brazier,  2  Bailey,  55;  Main  v.  King,  10  Barb.  59; 
Knowlton  v.  Mackay,  29  U.  C.  C.  P.  601.  An  agreement  to  forfeit  tuition 
fees  paid  in  advance  in  case  of  expulsion  from  school  provides  for  liquidated 
damages,  and  not  a  penalty.  Fessman  v.  Seeley  (Tex.  Civ.  App.)  30  S.  W. 
208.  Forfeiture  of  reasonable  proportion  of  wages  for  quitting  without  no- 
tice will  be  upheld.  Tennessee  Manuf'g  Co.  v.  James,  91  Tenn.  154,  18  S.  W. 
262.  A  contract  of  employment  providing  that  the  employe  shall  pay  $1,000 
as  liquidated  damages,  in  case  he  shall  become  intoxicated,  provides  for  liq- 
uidated damages,  and  not  a  penalty,  although  it  is  possible  for  a  breach  to 
occur  with  no  actual  damages  other  than  nominal.  Keeble  v.  Keeble,  85  Ala. 
552,  5  South.  149. 

ST    Cotheal  v.  Talmage,  9  N.  Y.  551;    Bagley  v.  Peddie.  10  N.  Y.  469 


^§  48-57)  RULES  OF  coNSTRuqrioN.  137 

■Stipulated  Sum  where  Damages  are  Certain. 

Where  damages  can  be  easily  and  precisely  determined  by  a  def- 
inite pecuniary  standard  as  by  proof  of  market  values,  but  the 
parties  have  stipulated  for  a  much  larger  sum,  such  sum  will  usu- 
ally be  held  to  be  a  penalty;  for  it  is  evident  that  the  principle  of 
•compensation  has  been  disregarded.  The  principle  here  is  the  same 
as  where  a  smaller  sum  of  money  is  secured  by  a  larger.^*  When- 
•ever  the  damages  can  be  ascertained  with  reasonable  certainty,  the 
strong  tendency  is  to  regard  a  stipulated  sum  materially  variant 
therefrom  as  a  penalty.  We  have  seen,  however,  that  the  damages 
recoverable  under  legal  rules  seldom  constitute  complete  indemnity, 
and  in  cases  of  contracts,  therefore,  the  law  permits  the  parties  to 
provide  for  this  contingency.  They  may  stipulate  for  a  compensa- 
tion for  losses  which  the  law  would  regard  as  too  remote  or  uncer- 
tain to  be  considered,  and  if  the  stipulation  is  reasonable,  it  will  be 
•enforced  as  liquidated  damages,^ ^     This  is  but  an  application  of  the 

8  8  "There  are  no  peculiar  reasons  why  a  stipulated  sum  should  be  treated 
as  a  penalty  for  exceeding  just  compensation  for  a  default  In  the  payment  of 
money,  and  not  be  so  treated  in  case  of  a  different  agreement,  where  the 
•excess  is  capable  of  being  made  equally  manifest."  Suth.  Dam.  §  289;  Fisher 
Y.  Bidwell.  27  Conn.  303.  Where  parties  bind  themselves  in  a  certain  sum 
to  abide  by  an  award,  the  sum  is  a  penalty,  and  only  the  award,  with  inter- 
■est,  can  be  recovered.     Stewart  v.  Grier,  7  Houst.  378,  32  Atl.  328. 

3  9  Jaqua  v.  Headington,  114  Ind.  309,  IG  N.  E.  527;  Nielson  v.  Read,  12 
Fed.  441;  Gallo  v.  McAndrews,  29  Fed.  715;  Hodges  v.  King,  7  Mete.  (Mass.) 
•583;  Manice  v.  Brady,  15  Abb.  Prac.  173;  Durst  v.  Swift,  11  Tex.  273; 
Walker  v.  Engler,  30  Mo.  130;  Cotheal  v.  Talmage,  9  N.  Y.  551;  Fitzpatricli 
v.  Cottingham,  14  Wis.  237;  Eastou  v.  Canal  Co.,  13  Ohio,  SO;  Bradshaw  v. 
•Craycraft,  3  J.  J.  Marsh.  (Ky.)  79;  Ex  parte  Hodges,  24  Ark.  197;  Talcott 
V.  Marston,  3  Minn.  339  (Gil.  238);  Shrevc  v.  Brereton.  51  Pa.  St.  175;  Knapp 
r.  Maltby,  13  Wend.  587;  Powell  v.  Burroughs,  54  Pa.  St.  329;  Johnston  v. 
€owan,  59  Pa.  St.  275;  Keoble  v.  Keeble,  85  Ala.  552,  5  South.  149.  But  if  the 
sum  fixed  varies  materially  from  a  just  compensation,  or  if  the  intention  is 
doubtful,  the  sum  will  be  held  a  penalty.  Dennis  v.  Cummins,  3  Johns.  Cas. 
297;  Lindsay  v.  Anesley,  6  Ired.  (N.  C.)  188;  Mills  v.  Fox.  4  E.  D.  Smith,  220: 
Esmond  v.  Van  Benschoten,  12  Barb.  300,  Baird  v.  Tollivoi.  0  Humph.  (Tonn.) 
180.  A  provision  in  a  lease  for  !?5.(KX)  daniatji's.  to  co:er  interruption  of  earn- 
ings and  other  losses  in  addition  to  unpaid  rent.  In  case  of  breach  by  the 
lessee,  when,  on  an  actual  breach,  no  substantial  damage  has  been  suHerod. 
must  be  hold  to  be  a  penalty.  (5ay  Manuf'g  Co.  v.  Camp,  25  U.  S.  App.  131. 
13  C.  C.  A.  137,  05  Fi'd.  791.     WIk-h-  Hit-  provistons  of  iij.yiiiciit  in  an  :igroe- 


138         BONDS LIQUIDATED  DAMAGES ALTERNATIVE  CONTRACTS,        (Cll.    4 

rule  that  the  damages  for  a  broach  of  contract  are  such  as  were  con- 
templated at  the  time  the  contract  was  made. 

Sum  Deposited  to  he  Forfeited  on  Breach. 

Where  a  sum  is  deposited,  and  the  contract  declares  that  it  shall 
be  forfeited  for  nonperformance,  if  reasonable  in  amount,  it  will  be 
enforced  as  liquidated  damages.*"  In  Wallis  v.  Smith  *^  it  was  said, 
in  this  connection:  "In  that  there  seems  to  me  to  be  great  good 
sense,  and  for  this  reason:  that  if  a  fund  is  set  apart  to  meet  a 
particular  contingencey,  which  is  described,  and  that  contingency 
arises,  it  is  difficult  to  say  that  the  stakeholder,  or  other  person  hav- 
ing the  fund,  is  not  to  hand  it  over  at  once  to  the  person  who  claims 
it  under  the  contingency  that  has  happened."  The  sum  deposited 
must  be  reasonable.*^ 

Sum  Stipulated  for  Breach  of  Contract  for  Several  Things. 

Where  a  contract  contains  stipulations  for  several  things  of  wide- 
ly  different  degrees  of  importance,  it  is  obvious  that  a  fixed  sum 
made  payable  on  the  breach  of  any  of  them  cannot  be  based  on  the 
principle  of  compensation.  This  is  still  more  apparent  where  the 
damages  for  some  breaches  can  be  accurately  measured,  and  the  sum 
fixed  is  in  excess  of  that  sum;  but  it  is  equally  true  though  the  dam- 

ment  for  the  use  of  a  certain  machine  are  that  the  lessee  shall  keep  an  ac- 
count of  the  work  done  by  the  machine,  and  pay  ratably  therefor,  "and,  if 
said  lessee  shall  fail  or  neglect  to  keep  an  account"  of  the  work  so  done, 
"the  lessor  may,  at  his  option,  either"  employ  some  suitable  person  to  take 
the  account  for  him,  or  "charge  said  lessee,  in  lieu  of"  the  ratable  price  named, 
"the  sum  of  five  dollars  per  day  for  each  of  said  machines,"  the  alternative 
will  not  be  construed  as  a  penalty,  but  as  fixing  upon  a  roughly-estimated 
per  diem  equivalent,  where  the  difference  is  not  too  great  to  admit  of  that 
conclusion.  Standard  Button-Fastening  Co.  v.  Breed,  163  Mass.  10,  39  N.  E^ 
346. 

40  Reilly  V.  Jones,  1  Bing.  302;  Hinton  v.  Sparkes,  L.  R.  3  C.  P.  161;  Lea 
V.  Wbitaker,  L.  R.  8  C.  P.  70;  Magee  v.  Lavell,  L.  R.  9  0.  P.  107;  Swift  v. 
Powell,  44  Ga.  123;  Perzell  v.  Shook,  53  N.  Y.  Super.  Ct.  501;  Mathews  v. 
Sharp,  99  Pa.  St.  560;  Eakin  v.  Scott,  70  Tex.  442,  7  S.  W.  777.  See  Stillwell 
V.  Temple,  28  Mo.  156. 

41  21   Ch.  Div.  243. 

4  2  Chaude  v.  Shepard,  122  N.  Y.  397,  25  N.  E.  358.  It  was  held  in  this  case, 
however,  that  the  rule  only  applied  in  cases  where  the  deposit  was  made  in 
part  performance  of  the  contract,  and  not  where  it  was  mere  security.  But 
see  In  re  Dagenham  (Thames)  Dock  Co.,  8  Ch.  App.  1022, 


§j    46-07)  RULES    OF   CONSTRUCTION.  139 

ages  cannot  be  accurately  measured  for  any  breach,  for  it  is  logic- 
ally certain  that  one  sum  cannot  be  fair  compensation  for  a  breach 
of  either  of  two  stipulations  of  widely  different  value  or  importance. 
In  Lyman  v.  Babcock  *^  it  was  said:     *' Where  the  sum  is  agreed  to 
be  paid  for  any  of  several  breaches  of  the  contract,  and  the  damages 
resulting  from  the  breach  of  all  of  them  are  uncertain,  and  there 
is  no  fixed  rule  for  measuring  them,  but  the  breaches  are  apparent- 
ly of  various  degrees  of  importance  and  injury,  the  cases  are  con- 
flicting in  the  rule  whether  the  sum  should  be  held  as  a  penalty  or 
as  liquidated  damages.     On  principle  we  are  very  clear  that  in  such 
a  case  the  sum  should  be  held  as  a  penalty;  for  it  appears  to  us  that 
it  would  be  as  unjust  to  sanction  a  recovery  of  the  sum  agreed  to  be 
paid  alike  for  any  one  trivial  breach,   or  for  any  one  important 
breach,  or  for  breach  of  the  whole  contract,  as  it  would  be  to  sanc- 
tion such  a  recovery  equally  for  damages  certain  and  uncertain  in 
their  nature.     The  rule  holding  the  sum  to  be  a  penalty  in  the  lat- 
ter case  goes  upon  the  injustice  of  allowing  such  a  recovery  for  a 
less  amount  of  actual  damages  ascertained  or  readily  ascertainable. 
And  we  cannot  but  think  that  there  is  like  injustice  in  allowing 
equally,  in  case  of  damages,  uncertain  indeed,  but  manifestly  and 
m.aterially  different  in  amount,  equally  for  breach  of  part  of  the 
contract,  and  for  breach  of  the  entire  contract.     Such  a  rule  would 
not  only  put  the  same  value  on  a  small  part  as  on  a  large  part,  but 
would  put  the  same  value  on  any  part  as  on  the  whole."     This  is 
believed  to  be  a  correct  statement  of  the  law,  though  the  courts 
have  not  always  found  it  necessary  to  state  the  rule  so  broadly.^* 

43  40  Wis.  503,  517. 

**  Kemble  v.  Farren,  G  Bing.  141;  Foley  v.  McKeegan,  4  Iowa,  1;  Moore  v. 
Colt,  127  Pa.  St.  289,  18  Atl.  8;  Curry  v.  Larer,  7  Pa.  St.  470;  McCuUouglv 
V.  Manning,  132  Pa.  St.  43,  18  Atl.  1080;  Keck  v.  Bieber,  148  Pa.  St.  645,  24 
Atl.  170;  Hathaway  v.  Lynn,  75  Wis.  ISO,  43  N.  W.  95G;  Fitzpatrick  v.  Cot- 
tingham,  14  Wis.  219;  Trustees  of  First  Orthodox  Congregational  Church  v. 
Walrath,  27  Mich.  232;  Daily  v.  Litchfield,  10  .Mich.  29;  Bryton  v.  Marstou. 
33  111.  App.  211;  Trower  v.  Elder,  77  111.  453;  Lord  v.  Gaddis,  9  Iowa,  2G5; 
Hallock  V.  Slater,  Id.  599;  Clement  v.  Cash,  21  N.  Y.  253;  Niver  v.  Uossnian. 
18  Barb.  50;  Staples  v.  Parker,  41  Barb.  648;  Lansing  v.  Dodd,  45  N.  J.  Law, 
525;  Hoagland  v.  Segur,  38  N.  J.  Law,  230;  Cheddick's  Kx'r  v.  Marsh,  21 
N.  J.  Law,  403;  Brown  v.  Bellows,  4  Pick.  179;  Chase  v.  Allen.  13  Gray.  12; 
Shute  V.  Taylor,  5  Mete.  (Mass.)  Gl;    Higginson  v.  Wi-l<i,  II  Gray.  K!.-.;    Wntls- 


140         BONDS LIQUIDATED  DAMAGES ALTERNATIVE  CONTRACTS.       (Cil.   4 

"Where  the  damages  for  the  breach  of  one  of  the  stipulations  can  be 
accurately  measured,  as  where  it  is  for  the  payment  of  a  sum  of 
money,  and  this  sum  is  less  than  the  stipulated  sum,  the  latter  is 
clearly  a  penalty/^ 
Fartial  Breach. 

A  sum  stipulated  to  be  paid  upon  a  breach  of  contract  cannot  be 
recovered  as  liquidated  damages  for  a  partial  breach,  for  one  sum 
cannot  consistently  be  compensation  alike  for  either  a  total  or  a 
partial  breach;  *®  and,  of  course,  if  it  appears  from  the  language 
used  that  the  stipulation  was  meant  to  be  applicable  only  to  a  total 
breach,  it  will  be  disregarded  in  an  action  for  a  partial  breach.*^ 
But  a  contract  containing  several  stipulations  may  be  of  such  a 
nature  that  breach  of  any  one  of  them  will  defeat  the  entire  object 
of  the  contract,  in  which  case  any  breach  is  really  a  total  breach,  and 
the  sum  named,  if  reasonable,  may  be  recovered  as  liquidated  dam- 
ages.** So,  also,  a  partial  breach  may  justify  the  other  party  in 
treating  the  contract  as  at  an  end,  and,  if  he  does  so,  the  sum  named 
.may  be  recovered;   but,  if  he  accepts  part  performance,  it  cannot.*' 

V.  Camors,  115  U.  S.  353,  6  Sup.  Ct.  91;  Bignall  v.  Gould,  119  U.  S.  495,  7  Sup. 
•Ct.  294;  Higbie  v.  Farr,  28  Minn.  439,  10  N.  W.  592;  Cook  v.  Finch,  19  Minn. 
407  (Gil.  350);  Gower  v.  Saltmarsh,  11  Mo.  271;  Nash  v.  Hermosilla,  9  Gal. 
.585;  Hammer  v.  Breidenbach,  31  Mo.  49;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Shoe- 
inaker,  27  Kan.  677. 

4  5  Clement  v.  Cash,  21  N.  Y.  253;  Cotheal  v.  Talmage,  9  N.  Y.  551;  Lamp- 
man  V.  Cochran,  16  N.  Y.  275.     But  see  Brewster  v.  Edgerly,  13  N.  H.  275. 

4  6  Sedg.  Dam.  §  415. 

47    Cook  V.  Finch.  19  Minn.  407  (Gil.  350). 

4  8  The  object  of  a  contract  to  abstain  from  the  use  of  intoxicating  liquors 
■during  a  certain  period  is  defeated  by  a  single  breach,  and  the  sum  named  may 
be  recovered  as  liquidated  damages.  Keeble  v.  Keeble,  85  Ala.  552,  5  South. 
149.  In  an  action  on  a  bond  conditioned  that  defendant  would  marry  a  cer- 
tain woman,  treat  her  as  a  wife  should  be  treated,  and  give  her  no  cause  for 
•divorce,  the  plaintiff  need  not  prove  a  breach  of  all  the  conditions.  Stanley 
V.  Montgomery,  102  Ind.  102,  26  N.  E.  213.  The  same  ruling  was  made  in 
an  action  on  a  contract  not  to  employ  union  men,  or  to  use  union  labels,  or 
to  buy  or  sell  articles  bearing  union  labels.     Schrader  v.  Lillis,  10  Ont.  358. 

49  Wibaux  V.  Live  Stock  Co.,  9  Mont.  154,  165.  22  Pac.  492;  Hoagland  v. 
Segur,  38  N.  J.  Law,  230;  Shute  v.  Taylor,  5  Mete.  (Mass.)  01;  Watts'  Ex'rs 
-V.  Sheppard,  2  Ala.  425;  Berry  v.  Wisdom,  3  Ohio  St.  241;  Lampman  v. 
•Cochran,  16  N.  Y.  275.  per  Shankland,  J.;  Shiell  v.  McXitt,  9  Paige,  101; 
JMnndy  v.  Culver,  18  Barb.  336. 


§    58)  ALTERNATIVE    CONTRACTS.  14l 

In  the  latter  alternative  it  has  been  held,  in  some  cases,  that  the- 
sum  fixed  was  a  penalty;  ^°  in  others,  judgment  has  been  given  for 
a  proportional  part.^^ 

Stipulations  in  Evasion  of  Usury  Laics. 

Where  the  sum  stipulated  to  be  paid  on  the  breach  of  a  contract 
would  constitute  an  evasion  of  the  usury  laws,  it  will  be  treated  as 
a  penalty.^-  The  law  itself  has  fixed  this  limit  of  compensation  in 
this  class  of  cases,  and  therefore  a  stipulation  for  a  greater  sum  can- 
not be  regarded  as  based  on  the  principle  of  compensation.  It  is,, 
therefore,  a  penalty,  if,  indeed,  it  is  not  absolutely  void." 

ALTERNATIVE  CONTRACTS. 

68.  The  measure  of  damages  for  the  breach  of  an  alterna- 
tive contract  is  compensation  for  the  least  benefi- 
cial alternative. 

An  alternative  contract  is  one  which  may  be  executed  by  doing 
eitiier  of  several  acts  at  the  election  of  the  party  from  whom  per- 
formance is  due.^*  The  contract  is  completely  performed  when  any 
one  of  the  alternatives  is  performed,  and  so,  of  course,  no  question, 
of  damages  for  a  breach  arises.  An  alternative  contract  is  not  a 
contract  for  liquidated  damages."^^  To  constitute  an  alternative 
contract  there  must  have  been  an  intention  to  really  give  the  party 

50  Town  of  Wbeatlands  v.  Taylor,  29  Hun,  70;  Shute  v.  Taj-lor,  5  Mete. 
(Mass.)  Ul. 

61  Watts'  Ex'rs  v.  Sboppard,  2  Ala.  425.     See  Chase  v.  Allen.  13  Graj',  42. 

■52  Clark  V.  Kay.  20  Ga.  40o;  Brown  v.  Maulsby.  17  Ind.  10;  Kurlz  v.  Spon- 
able,  6  Kan.  395;  Davis  v.  Freeman,  10  Micb.  188;  State  v.  Taylor,  10  Ohio, 
378;  Shelton  v.  Gill,  11  Ohio,  417;  Orr  v.  Cburcbill,  1  H.  Bl.  227,  2;J2;  Gray 
V.  Crosby.  18  Jobns.  219,  22G;  Foote  v.  Sprague,  13  Kan.  155.  But  see  I^aw- 
rence  v.  Cowles,  13  111.  577;  Gould  v.  Bisbop  Hill  Colony,  35  111.  324.  Wltbin 
tbe  bounds  of  tbe  lofjal  rate  of  interest,  parties  may  liquidate  damages  for 
nonpayment  of  money  when  due.  Ilackenberry  v.  Sbaw,  11  Ind.  392;  Gully 
V.  Kemy,  1  Blackf.  (Ind.)  G9;  Wakefield  tt.  Beckley.  3  McCord  (S.  C.)  480; 
Daspett  V.  Pratt,  15  Mass.  177.  See  Ilicbards  v.  Marsbnian,  2  G.  Greene- 
(Iowa)  217. 

C3  This  would  depend  on  the  language  of  tbe  statute. 

5*  Suth.  Dam.  §  282. 

15  Smith  v.  Bergengren.  153  Mass.  230,  20  N.  E.  090. 


142         BONDS LIQUIDATKD  DAMAGES ALTRRNATIVE  CONTRACTS.       (Cll.   4 

an  option.  When  this  is  the  case,  the  damages  for  a  breach  are 
limited  to  compensation  Tor  the  least  beneficial  alternative,  on  the 
theory  that  the  parties  must  have  contemplated  that  the  defendant 
would  choose  to  perform  that  one.'"  Where,  however,  the  contract, 
instead  of  being  to  do  one  thing  or  another,  is  an  absolute  engage- 
ment to  do  a  thing,  and,  if  not,  to  pay  a  sum  of  money,  the  dam- 
ages for  not  doing  the  thing  are  the  sum  of  money.^^  In  such  a  case, 
the  party  has  no  option,  °^  and  the  agreement  is  one  for  liquidated 
damages,  subject  to  the  rules  already  explained.  Where  the  con- 
tract is  to  do  a  certain  thing  or  to  pay  a  given  sum  of  money,  and 
the  defendant  has  failed  to  do  the  thing,  he  is  generally  held  to 
have  had  his  election,  and  payment  of  the  money  may  be  enforced.^* 

Bs  Sedg.  Dam.  §  421. 

67  Deverill  v.  Burnell,  L.  R.  8  C.  P.  475;  Stewart  v.  Bedell,  79  Pa.  St.  33(i; 
People  V.  Central  Pac.  K.  Co.,  76  Cal.  29,  84,  18  Pac.  90;  Crane  v.  Peer,  43 
N.  J.  Eq.  553,  4  Atl.  72,  collecting  cases.  But  see  Halin  v.  Concordia  So- 
ciety, 42  Md.  460;    City  of  Indianola  v.  Gulf,  W.  T.  &  P.  Ry.,  56  Tex.  594. 

5  8  Equity  may  enforce  performance  or  enjoin  a  violation.  Ay  res  v.  Pease, 
12  Wend.  393;  Pbenii  Ins.  Co.  v.  Continental  Ins.  Co.,  14  Abb.  Prac.  (N.  S.) 
266;  Long  v.  Bowring,  33  Beav.  585;  Howard  v.  Hopkyns,  2  Atk.  371;  Dike 
V.  Greene,  4  R.  I.  285;  Dooley  v.  Watson,  1  Gray,  414;  Gray  v.  Crosby,  18 
Johns.  219;  Sainter  v.  Ferguson,  7  C.  B.  716;  Hobson  v.  Trevor,  2  P.  Wms. 
191;  Chilliner  v.  Chilliner,  2  Ves.  Sr.  528;  Ingledew  v.  Cripps,  2  Ld.  Raym. 
814;  Sloman  v.  Walter,  1  Brown,  Ch.  418;  Lampman  v.  Cochran,  16  N.  Y. 
275;  Ward  v.  Jewett,  4  Rob.  (N.  Y.)  714;  Robeson  v.  Whitesides,  16  Serg.  & 
R.  (Pa.)  320;  Robinson  v.  Bakewell,  25  Pa.  St.  424;  Cartwright  v.  Gardner, 
5  Cush.  (Mass.)  273;    National  Provincial  Bank  v.  Marshall,  40  Ch.  Div.  112. 

6  9  Pearson  v.  Williams'  Adm'rs,  24  Wend.  244,  26  Wend.  630;  Pennsylvania 
R.  Co.  V.  Reichert,  58  Md.  261;  Hodges  v.  King,  7  Mete.  (Mass.)  583;  Slosson 
V.  Beadle,  7  Johns.  72;  Allen  v.  Brazier,  2  Bailey  (S.  C.)  293.  See,  also,  Mor- 
rell  V.  Insurance  Co.,  33  N.  Y.  429;  American  Cent.  Ins.  Co.  v.  McLanathan, 
11  Kan.  533  (option  to  pay  loss  or  rebuild).  This  rule  is  difficult  to  reconcile 
with  that  of  the  least  beneficial  alternative.  Its  practical  effect  is  to  make 
an  alternative  contract  one  for  liquidated  damages,  with  this  difference,  that 
specific  performance  of  a  contract  can  be  enforced,  though  it  stipulate  for  liq- 
uidated damages,  while,  in  alternative  contracts,  only  the  alternative  chosen 
can  be  enforced.  See  Crane  v.  Peer,  43  N.  J.  Eq.  553,  558,  4  Atl.  72,  and 
Suth.  Dam.  §  282.  In  Smith  v.  Bergengren,  153  Mass.  236,  26  N.  E.  690,  it 
was  held  that  a  covenant  not  to  practice  medicine  in  a  certain  town  so  long 
as  the  plaintiff  should  remain  in  practice  there,  but  containing  a  provision 
that  defendant  might  resume  practice  provided  he  would  pay  plaintiff  a  cer- 


§   58)  ALTERNATIVE    CONTRACTS.  143 

The  form  of  an  alternative  contract  cannot  be  used  to  disguise  a 
stipulation  for  a  penalty.  If  the  real  intent  is  to  liquidate  the  dam- 
ages or  provide  for  a  penalty,  the  intent  will  be  enforced  only  so  far 
as  is  compatible  with  the  principles  already  explained. 

tain  sum,  did  not  provide  for  either  a  penalty  or  liquidated  damages.  The 
sum  named  was  a  price  fixed  for  what  the  contract  permitted  him  to  do  if 
tie  paid. 


144  INTEREST.  (Ub.  5 

CHAPTER  V. 

INTEREST. 

B9.    Definition. 

60.  Interest  as  a  Debt  and  as  Damages. 

61.  General  Rule. 

62.  Interest  on  Nonpecuniary  Losses. 

63.  Pecuniary  Losses— Liquidated  Demands. 

64.  Pecuniary  Losses— Unliquidated  Demands. 

65.  Contracts. 
66-67.  Torts. 

68.  Condemnation  Proceedings. 

69.  Defendant  not  Responsible  for  Delay. 

70.  Interest  on  Overdue  Paper— Contract  and  Statute  Rate. 

71.  Compound  Interest 

DEFINITION. 

59.  Interest  is  the  compensation  fixed  by  agreement  or 
allowed  by  law  for  the  use  or  detention  of  money, 
or  for  the  loss  thereof  to  the  party  entitled  to  its 
use.^ 

1  Sutb.  Dam.  §  300.  "Interest  is  the  value  of  the  use  of  money;  the  amount 
of  compensation  for  withholding  money."  Sedg.  Dam,  §  282;  Loudon  v.  Tax- 
ing Dist.,  104  U.  S.  771;  Minard  v.  Beans,  64  Pa.  St,  411.  "Interest  is  the 
compensation  that  one  person  gives  for  the  use  and  profit  of  another's  money, 
or  the  legal  damage  he  is  obliged  to  pay  to  another  person  who  has  lost  the 
use  of  his  money  through  the  payor's  act  or  negligence,  although  the  payor 
may  not  have  received  any  benefit  therefrom."  Perley,  Interest,  p.  1.  "A 
contract  to  pay  interest  is  a  contract  to  pay  a  consideration  for  the  future 
use  of  money.  The  contract  in  this  case  was  a  contract  to  pay  a  considera- 
tion for  the  past  use  of  money,  and  therefore  not  a  contract  to  pay  interest  in 
any  proper  or  legal  sense."  Daniels  v.  Wilson,  21  Minn.  530.  See,  also, 
Davis  v.  Yuba  Co.,  75  Cal.  452,  13  Pac.  874,  and  17  Pac.  533.  The  term 
"usury,"  as  originally  used,  was  synonymous  with  the  modern  term  "inter- 
est." "Usury,"  as  now  used,  means  only  the  excess  of  interest  above  the 
legal  rate  allowed.     The  term  "interest"  is  broad  enough  to  include  "usury." 


§    60)  INTEREST    AS    A    DEBT    AND    AS    DAMAGES.  145 


INTEREST  AS  A  DEBT  AND  AS  DAMAGES. 

60.  In  all   cases  -w^here  interest  is  recoverable,  it  is  given 
either 

(a)  By  contract,  in  -which  ease  it  is  a  debt;  or, 

(b)  By  law,  in  which  case  it  is  given  as  damages. 

The  right  to  recover  interest  may  arise  out  of  a  contract  to  pay 
it,  or  it  may  arise  independently  of  contract.  Where  there  is  a 
contract  for  interest,  such  interest  constitutes  a  debt,  and  is  re- 
coverable as  such.^  With  this  branch  of  the  subject  we  are  not 
specially  concerned.  Where  interest  is  given  by  law,  it  is  given 
as  damages  for  delay  in  making  compensation. 

The  Evglish  Doctrine. 

By  the  ancient  common  law  the  taking  of  interest  was  absolutely 
prohibited  in  England,  ^  but  it  was  subsequently  permitted  by  stat- 
ute.* It  is  allowed  now,  as  a  matter  of  right,  only  when  there  is 
a  contract,  express  or  implied,  for  its  payment."     It  is  allowed,  in 

2  Hummel  v.  Brown.  24  Pa.  St.  310. 

3  Hawk,  bk.  1,  c.  82;  Hume,  c.  33;  Perley,  Interest,  p.  1;  Sutli.  Dam.  §  301. 
The  habitual  taking  of  interest  was  punished  as  a  crime,  and  the  offender's 
estate  was  forfeited  to  the  king.  Houghton  v.  Page,  2  N.  H.  42;  ChesteiHelcl 
V.  Janson,  1  Wils.  28(5-290.  In  Mirror  of  Justice,  191,  248,  published  before  th(> 
Norman  Conquest,  it  is  lamented  as  "an  abusion  of  the  common  law"  that  tbr 
offender  was  not  likewise  deprived  of  Christian  burial. 

*  37  Hen.  VIII.  c.  9  (1545).  This  statute  limited  the  rate  to  10  per  cent.,  and 
thus  negatively  authorized  interest.  Under  this  statute  the  lirst  lawful  in- 
terest was  taken  in  England.  '"Before  the  statute  of  Henry  VIII.,  all  interest 
on  money  lent  was  prohibited  by  the  canon  law,  as  it  is  now  in  Roman 
Catholic  countries."  Per  Lord  Mansfield  in  Lowe  v.  Waller,  Doug.  73C),  740; 
President,  etc.,  Rensselaer  Glass  Factory  v.  Reid,  5  Cow.  587,  COS,  per  Mr. 
Senator  Spencer,  dissenting.  12  Anne,  St.  2,  c.  IG,  reduced  the  rate  to  .">  per 
cent.  Various  statutes  establishing  different  rates  had  been  passed  between 
the  dates  of  these  two  statutes.  See  note  in  2  Pars.  Notes  &  B.  391.  By  17 
&  18  Vict.  c.  90,  all  the  laws  against  usury  wore  repoalcd,  Ictivlng  parlies  jit 
liberty  to  contract  for  any  rate  of  Interest. 

s  Higgins  v.  Sargent,  2  Barn.  &  C.  318;  Sliaw  v.  IMeton,  4  Barn.  iV:  (".  ~\'>, 
723;  Page  v.  Newman,  9  Barn.  &  C.  378,  disapproving  Arnott  v.  Itedl'erii,  3 
Blug.  .3r>3. 

LAW    OAM.— 10 


146  INTEREST.  (Ch.  5 

the  discretion  of  the  jury,  as  damages,  only  in  eases  provided  for 
by  statute,  and  as  special  damages  for  the  detention  of  money. 
Same — Interest  by  Agreement. 

Where  there  is  an  express  agreement  to  pay  interest,  there  is,  of 
course,  no  difficulty  in  its  allowance.  It  was  held  at  an  early  day 
that,  where  there  was  an  agreement  to  obtain  money  at  a  specific 
time,  the  law  would  imply  an  agreement  to  pay  interest  after  that 
time,  if  there  was  a  default.®  "Where  money  is  made  payable  by  an 
agreement  between  the  parties,  and  a  time  given  for  the  payment 
of  it,  this  is  a  contract  to  pay  the  money  at  the  given  time,  and  to 
pay  interest  for  it  from  the  given  day  in  case  of  failure  of  payment 
at  that  day."  ^  But  this  rule  has  not  been  followed  in  the  later 
cases. ^  An  agreement  to  pay  interest  may  be  implied  from  the  cus- 
tom or  usage  of  the  business  in  which  the  debt  is  contracted. *•    There 

6  Blaney  v.  Hendricks,  2  W.  Bl.  7G1,  3  Wils.  205;  Shipley  v.  Hammond,  5 
Esp.  114;    Chalie  v.  Duke  of  York,  G  Esp.  45. 

7  Robinson  v.  Bland,  2  Burrows,  1077,  10S6.  See,  also,  Boddam  v.  Kiley,  2 
Brown,  Ch.  2;    Mountford  v.  Willes,  2  Bos.  &  P.  337. 

8  See  Mayne,  Dam.  §  181.  The  principle  seems  admitted  by  Lord  Ellen- 
borough  in  Salton  v.  Bragg,  15  East,  223,  22G,  and  in  De  Havilland  v.  Bower- 
bank,  1  Camp.  50.  But  in  Gordon  v.  Swan,  2  Camp.  429,  note,  12  East,  419, 
he  limited  his  language  in  the  De  Havilland  Case  to  written  instruments  in 
the  nature  of  bills  or  notes.  In  De  Bernales  v.  Fuller,  2  Camp.  426,  he  said 
that,  where  there  was  no  contract,  express  or  implied,  to  pay  interest,  it  could 
not  be  allowed.  He  reiterated  tlie  rule  stated  by  him  in  the  De  Havilland 
Case.  In  Higgins  v.  Sargent,  2  Barn.  &  C.  348,  351,  352,  Holroyd,  J.,  said: 
"Unless  interest  be  payable  by  the  consent  of  the  parties,  express,  or  implied 
from  the  usage  of  trade  (as  in  case  of  bills  of  exchange)  or  other  circum- 
stances, it  is  not  due  by  common  law.  *  ♦  *  independently  of  these  au- 
thorities I  am  of  opinion,  upon  the  principles  of  the  common  law,  that  interest 
is  not  payable  upon  a  sum  certain  payable  at  a  given  day.''  In  Page  v. 
Newman,  9  Barn.  &  C.  378-381,  Lord  Tenterden  stated  the  rule  to  be  that 
interest  is  not  due  on  money  secured  by  a  written  instrument,  unless  it  ap- 
pears on  the  face  of  the  instrument  thai  interest  was  intended  to  be  paid,  or 
unless  it  be  implied  from  the  usage  of  trade.  Speaking  of  interest,  it  has 
been  well  said:  "It  would  fortunately  be  a  very  difficult  matter  to  fix  upon 
another  point  of  English  law  on  which  the  authorities  are  so  little  in  har- 
mony with  each  other."     De  Havilland  v.  Bowerbank,  1  Camp.  50-53. 

9  Eddowes  v.  Hopkins,  1  Doug.  376;  Selleck  v.  French,  1  Conn.  32;  Moore 
vy.  Voughton,  1  Starkie,  487. 


§    60)  INTEREST    AS    A    DEBT    AND    AS    DAMAGES.  147 

is  an  implied  agreement  to  pay  interest  on  mercantile  securities,  aris- 
ing out  of  the  custom  of  merchants.^" 
Bame — Inter-est  as  Damages. 

It  was  early  settled  that,  where  commercial  paper  was  not  paid 
at  maturity,  interest  thereafter  accruing  could  only  be  recovered  by 
way  of  damages  unless  it  was  provided  for  by  the  terms  of  the  note 
or  bill.^^  "Until  the  maturity  of  the  bill,  the  interest  is  a  debt. 
After  its  maturity,  the  interest  is  given  as  damages  at  the  discretion 
of  the  jury."  ^-  This  is  now  well  established.^^  The  allowance  of 
interest  as  damages  is  governed  in  England  by  the  statute  of  3  &  4 
Wm.  IV.  c.  42,  §§  28,  29.  In  all  cases  it  is  within  the  discretion 
of  the  jury.  Independently  of  this  statute,  interest  is  allowed  as 
special  damages  for  the  detention  of  money,  but  it  must  be  specially 
pleaded.^* 

The  American  Doclnne. 

In  America  the  prevailing  doctrine  is  that  the  right  to  interest 
is  given  by  the  common  law.^^  Interest  is  usually  considered  as  a 
necessary  and  natural  incident  of  money,  and  a  person  is  regarded 

10  Wood's  Mayne,  Dam.  p.  214. 

11  Du  Belloit  V.  Lord  Waterpark,  1  Dow  &  R.  16;  Dent  v.  Dunn,  3  Camp. 
29G.  In  Cameron  v.  Smith,  2  Barn.  &  Aid.  305-308,  it  tvas  held  that,  "al- 
though by  the  usage  of  trade  interest  is  allowed  on  a  bill,  yet  it  constitutes 
no  part  of  the  debt,  but  is  in  the  nature  of  damages,  which  must  go  to  the 
jury,  in  order  that  they  may  find  the  amount."  If  this  language  applies  to 
interest  accruing  before  maturity,  it  is  hard  to  understand  the  principle.  In 
re  Burgess,  2  Moore,  745,  was  a  similar  case,  but  the  bill  had  matured  and 
been  dishonored.     The  interest  was  held  to  be  in  the  nature  of  damages. 

12  Keene  v.  Keene,  3  C.  B.  (N.  S.)  144. 

13  In  re  Burgess,  2  Moore,  745;  Ex  parte  Charman,  Wkly.  Notes  (1SS7) 
184;  De  Havillaud  v.  Bowerbank,  1  Camp.  50;  Higgins  v.  Sargent,  2  Barn. 
&  C.  348;  Page  v.  Newman,  U  Barn.  &  C.  378.  But  see  Blanoy  v.  Hcmlricks, 
2  W.  Bl.  7G1;  Parker  v.  Hutchinson,  3  Ves.  133;  Lowndes  v.  Colleus,  17  Vcs. 
27. 

1*  Watkins  v.  Morgan,  G  Car.  &  P.  GGl;  Price  v.  Railway  Co.,  IG  Mccs.  &  W. 
244;  Cameron  v.  Smith,  2  Barn.  &  Aid.  305;  Cook  v.  Fowler,  L.  R.  7  H.  L. 
27. 

16  Where  there  Is  no  statute  on  the  sultjoct,  interest  will  be  allowed  by 
way  of  damages  for  unreasonably  withholding  payment  of  an  overdue  ac- 
count    Young  v.  Godbe,  15  Wall.  5G2;    Young  v.  I'olack,  3  Cal.  20S. 


14S  INTERKST.  (Ch.    ^ 

as  entitled  to  it  as  a  matter  of  right  whenever  money  is  wrongfully 
detained.^^  In  some  states,  however,  it  is  held  that  the  common^ 
law  gives  no  right  to  interest,  but  merely  allows  the  parties  to  con- 
tract for  it,  and  that,  unless  the  right  to  it  is  given  by  contract  or 
by  statute,  it  cannot  be  recovered.^^  In  all  the  states,  however,  the- 
matter  of  interest  is  largely  regulated  by  statute. 

Saine — Interest  as  a  Debt. 

Here,  as  in  England,  interest  is  always  properly  chargeable  where- 
there  is  either  an  express  or  an  implied  agreement  to  pay  it;  and 
an  agreement  to  that  effect  will  be  implied  where  there  was  a  cus- 
tom to  charge  interest,  which  was  known  to  the  defendant.^* 

18  Sedg.  Dam.  §  292.  The  early  cases  are  collected  and  discusstd  in  Wood 
V.  Kobbius,  11  Mass.  504;  Pope  v.  Barrett,  7  Mason,  117,  Fed.  Cas.  No.  11,273  ^ 
Boyd  V.  Gilchrist,  15  Ala.  849;    Davis  v.  Greely,  1  Cal.  422. 

17  Parmelee  v.  Lawrence,  48  111.  331;  Sammis  v.  Clark,  13  111.  544;  Mitt 
V.  Allen,  Id.  592;  City  of  Chicago  v.  Allcock,  SG  111.  384;  Denver,  S.  P.  &  P, 
R.  Co.  V.  Conway,  8  Colo.  1,  5  Pac.  142;  Hamer  v.  Kirk  wood,  25  Miss.  95;- 
Board  of  Sup'rs  of  Warren  Co.  v.  Klein,  51  Miss.  807;  Kenney  v.  Hannibal 
&  St.  J.  R.  Co.,  63  Mo.  99;  Marshall  v.  Schrieker,  Id.  308;  Atkinson  v.  At- 
lantic &  P.  R.  Co.,  Id.  367;  De  Steiger  v.  Hannibal  &  St.  J.  R.  Co.,  73  Mo. 
33;  Kimes  v.  St.  Louis,  L  M.  &  S.  Ry.  Co.,  85  Mo.  611;  Randall  v.  Green- 
hood,  3  Mont.  500;  Flannery  v.  Anderson,  4  Nev.  437.  In  Close  v.  Fields.  2 
Tex.  232,  it  was  held  that  the  right  to  interest  rested  wholly  on  statute.  The 
statutes  of  many  states  allow  interest  when  money  is  vexatiously  withheld.^ 
City  of  Chicago  v.  Allcock,  86  111.  384;  Chicago  &  N.  W.  R.  Co.  v.  Schultz,  55- 
111.  421;  Bradley  v.  Geiselman,  22  111.  494.  Whether  it  was  so  withheld  is  a 
question  for  the  jury.  Devine  v.  Edwards,  101  111.  138.  Merely  defending^ 
a  suit  is  not  vexations  delay  in  payment  of  money.  Aldrich  v.  Dunham,  16 
111.  403.  Interest  runs  from  the  time  payment  was  due,  not  from  the  time 
the  delay  became  vexatious.     City  of  Chicago  v,  Tebbetts,  104  U.  S.  120. 

isAyers  v.  Metcalf,  39  111.  307;  Veiths  v.  Hagge,  8  Iowa,  163;  M'AUister 
v.  Reab,  4  Wend.  483,  8  Wend.  109;  Meech  v.  Smith,  7  Wend.  315;  Rayburn 
V.  Day,  27  111.  46;  Dickson  v.  Surginer,  3  Brev.  417;  Fisher  v.  Sargent,  10 
Cush.  250;  Knox  v.  Jones,  2  Dall.  193;  Bispham  v.  Pallock,  1  McLean,  411, 
Fed.  Cas.  No.  1,442;  Koons  v.  Miller,  3  Watts  &  S.  271;  Watt  v.  Hoch,  25 
Pa.  St.  411;  Adams  v.  Palmer,  30  Pa.  St.  346.  Under  a  statute  providing  that 
no  more  than  a  certain  rate  shall  be  recovered  on  all  contracts,  express  or  im- 
plied, for  the  payment  of  money,  unless  expressly  stipulated  for  by  the  parties, 
an  agreement  cannot  be  implied  to  pay  more  than  the  statutory  rate.  Turner 
V.  Dawson,  50  111.  85. 


•§    60)  INTKREST    AS    A    DEBT    AND    AS    DAMAGES.  149 

£ame — Interest  as  Damages. 

By  the  earlier  cases  it  was  held  that  the  allowance  of  interest  as 
damages  was  discretionary  with  the  jury.^^  This  was  especially 
true  in  actions  of  tort,  ^°  but  the  rule  was  also  applied  in  actions 
x)f  contract.-^  The  court  was  thought  to  have  the  same  discretion 
as  the  jury.  In  a  leading  case  ^^  it  was  said:  "As  often  as  the 
■question  of  interest  has  been  before  a  court,  the  judges  seem  to  have 
considered  it  as  depending  on  general  equitable  principles,  and,  in 
most  cases,  to  have  decided  each  case  in  reference  to  its  particular 
•circumstances,  without  attempting  to  give  any  rule  which  might  be 
generally  applicable."  Gradually,  however,  and  in  a  continually  in- 
<^reasing  number  of  cases,  interest  came  to  be  allowed  as  a  matter 
^f  law,  and  this  is  now  the  rule  in  many  classes  of  cases.^^    Where 

19  Sedg.  Dam.  §  295;  Mcllvaine  v.  Wilkins,  12  N.  H.  474. 

2  0  It  was  so  in  trespass.  Beals  v.  Guernsey,  8  Johns.  446.  And  in  trover. 
Hyde  v.  Stone,  7  Wend.  354;  Bissell  v.  Hopliins,  4  Cow.  53;  Kennedy  v. 
Strong,  14  Johns.  12S;  Hallett  v.  Novion,  14  Johns.  273,  IG  Johns.  327;  Dev- 
ereux  v.  Burgwin,  11  Ired.  490.  And  in  replevin.  Rowley  v.  Gibbs,  14 
Johns.  385.  And  in  actions  for  negligence.  Thomas  v.  Weed,  14  Johns  255. 
Or  for  fraudulent  refusal  to  convey  land.  Handley  v.  Chambers,  1  Litt. 
(Ky.)  3.5S. 

21  Dox  V.  Dey,  3  Wend.  350;  Gilpins  v.  Consequa,  Pet.  C.  C.  85,  Fed.  Cas. 
No.  5,452;  Watkinson  v.  Laughton,  8  Johns.  213;  Amo'-y  v.  McGregor,  15  Johns. 
24;  Letcher  v.  Woodson,  1  Brock.  212,  Fed.  Cas.  No.  8,280;  Dotterer  v.  Ben- 
nett. 5  Rich.  Law,  295.  And,  generally,  it  was  held  that  interest  was  discre- 
tionary with  the  jury.  Willings  v.  Consequa,  Pet.  C.  C.  172,  Fed.  Cas.  No. 
17,7U(J;  Cakes  v.  Richardson,  2  Low.  173,  Fed.  Cas.  No.  10,390;  Crow  v. 
State,  23  Ark.  684;  Brady  v.  Wilcoxson,  44  Cal.  239;  Rogers  v.  West,  9  Ind. 
tfK);  Morford  v.  Ambrose,  3  J.  J.  Marsh.  688;  Marshall  v.  Dudley  4  J.  J. 
-Marsh.  244;  Bell's  Adm'rs  v.  Logan,  7  J.  J.  Marsh.  593;  Stark's  Adm'r  v. 
Price,  5  Dana,  140;  Howcott  v.  Collins,  23  Miss.  398;  Richmond  v.  Bronson. 
5  Denio.  55;  Hunt  v.  Jucks,  1  ILayw.  (N.  C.)  199;  Hogg  v.  Manufacturing 
•Co.,  5  Ohio,  410;  Obermyer  v.  Nichols,  6  Bin.  159,  Heidenheimer  v.  Ellis, 
€7  Tox.  420,  3  S.  W.  G(>0;   Close  v.  Fields.  13  Tex.  023. 

2  2  Rens.selaer  Glass  Factory  v.  Roid,  5  Cow.  587,  590. 

23  Lewis  v.  Rountree,  79  N.  C.  122,  128;  Dana  v.  Fiedler,  12  N.  Y.  40-50; 
Broughton  v.  Mitchell,  04  Ala.  210;  Hamer  v.  Hathaway,  33  Cal.  117;  An- 
drews v.  Durant,  18  N.  Y.  496;  De  Lavallette  v.  Wendt,  75  N.  Y.  579;  Rob- 
inson v.  Insurance  Co.,  1  Abb.  Prac.  (N.  S.)  180;  Wehle  v.  Butler.  13  IIow. 
Prac.  5;   Rhemke  v.  Clinton,  2  Utah,  230. 


150  INTEREST.  (Ch.  5 

interest  is  given  as  damages  for  the  nonpayment  or  detention  of 
money,  it  is  an  inseparable  incident  of  the  principal  demand.  It 
can  only  be  recovered  with  the  principal  by  action.  It  does  not  con- 
stitute a  debt  capable  of  a  distinct  claim.  Whenever  the  princl])al 
demand  is  satisfied  or  discharged,  the  accrued  interest,  whether  paid 
or  not,  is  extinguished.^*  Interest  as  damages  is  given  at  the  stat- 
utory rate.^''  Where  no  rate  is  fixed  by  statute,  it  is  given  at  the 
customary  rate.^®  Where  the  statutory  rate  is  changed  after  inter- 
est begins  to  accrue,  interest  accrues  thereafter  at  the  new  rate.'^ 
In  an  action  on  a  foreign  judgment,  it  has  been  held  that  interest 
should  be  given  at  the  domestic  rate,^^  whether  the  judgment  bore 
interest  by  the  foreign  law  or  not.  But  it  is  sometimes  held  that, 
if  the  foreign  rate  is  not  proved,  it  will  be  presumed  to  be  the  same 
as  the  domestic  rate.^®  In  an  action  on  a  contract,  ^°  interest  should 
be  given  at  the  rate  of  the  place  of  performance,  or  of  the  place 

24  Suth.  Dam.  §  300;  Dixon  v.  Parkes,  lEsp.llO;  Churcher  v.  Stringer, 2  Farn, 
&  Adol.  777;  Cutter  v.  Mayor,  etc.,  of  New  Yoik.  92  N.  Y.  166;  Hamilton  v. 
Van  Rensselaer,  43  N,  Y.  244;  Devlin  v.  City  of  New  York,  60  Hun,  68,  14  N, 
Y.  Supp.  251;  Hayes  v.  Railway  Co.,  64  Iowa,  753,  19  N.  W.  245;  Southern 
Cent.  R.  Co.  v.  Town  of  Moravia,  61  Barb.  181;  Consequa  v.  Fanning,  3 
Jolins.  Ch.  364;  Gillespie  v.  Mayor,  etc.,  of  New  York,  3  Edw.  Gh.  512;  Jacot 
v.  Emmett,  11  Paige,  142;  Succession  of  Mann,  4  La.  Ann.  28;  Succession  of 
Anderson,  12  La.  Ann.  95;  American  Bible  Soc.  v.  Wells,  68  Me.  572;  Tenth 
Nat.  Bank  v.  Mayor,  etc.,  of  New  York,  4  Hun,  429.  Where  interest  is  se- 
cured by  contract,  an  action  may  be  maintained  for  it,  although  the  principal 
has  been  paid.  Robbins  v.  Cheek,  32  Md.  328;  Stone  v.  Bennett,  8  Mo.  41; 
Fake  v.  Eddy's  Ex'r,  15  Wend.  76;    King  v.  Phillips,  95  N.  C.  245. 

26  Wegner  v.  Bank,  76  Wis.  242,  44  N.  W.  1096. 

2  6  Davis  V.  Greely,  1  Cal.  422;    Perry  v.  Taylor,  1  Utah,  63. 

27  White  V.  Lyons,  42  Cal.  279;  Woodward  v.  Woodward,  28  N.  J.  Eq.  119; 
Wilson  V.  Cobb,  31  N.  J.  Eq.  91;  In  re  Doremus'  Estate,  33  N.  J.  Eq.  234; 
Mayor,  etc.,  of  Jersey  City  v.  O'Callaghan,  41  N.  J.  Law,  349;  Reese  v. 
Rutherford,  90  N.  Y.  644;  Sanders  v.  Railway  Co.,  94  N,  Y.  641;  O'Brien  v. 
Young,  95  N.  Y.  428;    Stark  v.  Olney,  3  Or.  88. 

2  8  Parker  v.  Thompson,  3  Pick.  429;  Barringer  v.  King,  5  Gray,  9;  Hop- 
kins V.  Shepard,  129  Mass.  600;   Nelson  v.  Felder,  7  Rich.  Eq.  395. 

2  0  Crone  v.  Dawson,  19  Mo.  App.  214;  Pauska  v.  Dans,  31  Tex.  67;  Porter 
v.  Munger,  22  Vt.  191. 

30  Pana  v.  Bowler,  107  U.  S.  529,  2  Sup.  Cl.  704;  Sutro  Tunnel  Co.  v.  Seg- 
regated Belcher  Min.  Co.,  19  Nev.  121,  7  Pac.  271. 


§   61)  GENERAL    RULE.  151 

where  the  contract  was  made.^^  But  it  has  been  held  that  in- 
terest on  overdue  coupons  should  be  given  at  the  rate  of  the  place 
where  the  action  was  brought.*'' 


GENERAL  RULE. 

61.  Interest  should  be  allo-wed  as  damages  ■whenever  it 
represents  a  loss  proximately  caused  by  defend- 
ant's wrong. 

It  is  extremely  diflficult  to  frame  any  rule  governing  the  allow- 
ance of  interest  as  damages,  for.  the  reason  that  the  law  has  been 
in  a  constant  state  of  evolution  during  the  last  100  years,  and  the 
result  reached  in  different  jurisdictions  is  not  yet  the  same.  Per- 
haps much  of  the  confusion  in  the  cases  has  been  caused  by  the 
unfortunate  use  of  the  term  "interest"  to  indicate  both  interest  as 
a  debt  and  compensatory  damages  for  delay,  measured  by  the  i-ate 
of  interest.  The  contest  has  been  whether  an  allowance  should  be 
made  for  the  delay.  The  name  by  which  it  should  be  called  received 
but  little  attention,  and  it  was  incautiously  said  that  interest  should 
or  should  not  be  allowed.  The  distinction  however  is  important. 
"Interest  [as  a  debt]  is  recoverable  of  right,  but  compensation  for 
deferred  payments  in  torts  depends  upon  the  circumstances  of  each 
case.  The  plaintiff  may  have  set  his  damages  so  inordinately  high 
as  to  have  justified  the  defendant  in  refusing  to  pay;  or  in  other 
ways  the  delay  may  be  plaintiff's  fault;  or  the  liability  of  defend- 
ant may  have  arisen  without  fault,  as  in  Weir  v.  Allegheny  Co.'' 
In  such  cases  the  jury  probably  would  not,  and  certainly  ought  not, 
to  make  the  allowance."  '*  The  failure  to  appreciate  the  true  nature 
of  interest  allowed  as  damages  for  delay  led  to  the  idea,  often  ex- 
pressed in  the  early  cases,  that  interest  could  not  be  allowed  unless 
there  was  a  contract,  express  or  im])]iod,  to  pay  it.     Thus  in  Dodgr 

81  Gibbs  V.  Fremont,  9  Exch.  25;  Courtois  v.  Carijeutier.  1  Wash.  C.  C.  3Tt!, 
Fed.  Cas.  No.  3,28f5;  French  v.  French,  120  Mass  :!(W;  Pauska  v.  Dans,  31 
Tex.  67;    Porter  v.  Munger,  22  Vt.  lUl. 

8  2  Fauntleroy  v.  Hannibal.  5  Dill.  219.  Fed.  Cas.  No.  4,GU2. 

8  3  9.J  Pa.  St.  413. 

8  4  Richards  v.  Gas  Co..  i:5<J  Pa.  «t.  37,  18  Atl.  000. 


J  52  INTEREST.  (Ch.   5 

V.  Perkins^'  it  was  said:  "If  the  interest  is  not  included  in  the 
contract,  it  cannot  be  given.  If  it  is  included,  then  it  should  make 
up  a  part  of  the  judgment."  The  cases  are  by  no  means  unanimous 
in  the  support  of  any  theory  as  to  the  allowance  of  interest  as  dam- 
ages. The  theory  most  consistent  with  the  principles  upon  which 
the  whole  law  of  damages  rests  seems  to  be  that  interest  is  allowed 
as  damages  on  the  same  principle  that  all  damages  are  awarded, — 
that  is,  as  compensation  for  losses  proximately  caused  by  defend- 
ant's wrong. 

SAME— INTEREST  ON  NONPECUNIARY  LOSSES. 

62.  Interest  is  never  recoverable  in  actions  w^here  the  ele- 
ments of  injury  are  nonpecuniary. 

In  cases  where  the  elements  of  injury  are  nonpecuniary,  interest 
as  damages  cannot  be  recovered.  This  is  true  in  such  actions  as 
assault  and  battery,  personal  injury,  libel  aud  slander,  etc.  The 
reason  for  denying  interest  in  this  class  of  cases  was  clearly  stated 
in  an  action  for  personal  injury.  The  court  said:  "The  rule  for 
determining  damages  for  injuries  not  resulting  in  death,  where  the 
statute  fixes  the  measure,  and  not  calling  for  exemplary  punishment, 
is  that  of  compensation  for  mental  suffering  and  physical  pain,  loss 
of  time,  and  expenses  incident  to  the  injury,  and,  if  it  be  permanent, 
the  loss  resulting  from  complete  or  partial  disability,  in  health,  mind, 
or  person,  thereby  occasioned.  *  *  *  As  this  sum  in  gross  in- 
cludes all  the  compensation  which  is  requisite  to  cover  pain,  suf- 
fering, and  disability,  to  date  of  judgment  and  prospectively  beyond, 
it  is  intended  to  be,  and  is,  the  full  measure  of  recovery,  and  can- 
not be  supplemented  by  the  new  element  of  damages  for  the  deten- 
tion of  this  sum  from  the  date  of  the  injury.  The  measure  of  dam- 
ages being  thus  fixed,  it  is  expected  that,  in  determining  it,  juries 
and  courts  will  make  the  sum  given  in  gross  a  fair  and  just  com- 
pensation, and  one  in  the  full  amount  proper  to  be  given  when  ren- 
dered, whether  soon  or  late  after  the  injury;  as,  if  given  soon,  it 
looks  to  continuing  and  suffering  disability,  just  as,  when  given  late, 
it  includes  that  of  the  past.     It  is  obvious  that  damages  could  not 

«6  9  Pick.  3G8,  384. 


?    63)  PECUNIARY   LOSSES LIQUIDATED  DEMANDS.  153 

be  given  for  pain  and  suffering  and  disability  experienced  on  the 
very  day  of  trial,  and  then  interest  added  for  years  before.  These 
are  the  items  considered  to  make  up  the  aggregate  then  due,  and 
the  gross  sum  then  for  the  first  time  ascertained."  ^'  Interest,  of 
course,  cannot  be  allowed  on  exemplary  damages.* 

SAME— PECUNIARY  LOSSES— LIQUIDATED  DEMANDS. 

63.  Interest  is  al-ways  recoverable  in  an  action  for  the  de- 
tention of  money  or  the  nonpayment  of  liquidated 
demands. 

Interest  may  be  recovered  in  an  action  for  the  detention  of  money 
or  the  nonpayment  of  a  liquidated  demand,  as  a  matter  of  right. 
Indeed,  as  has  been  seen,  interest  at  the  legal  rate  is  the  measure 
of  damages  in  such  cases,  because  the  loss  of  such  interest  is  the 
only  proximate  and  certain  result  of  the  wrong.  When  a  liquidated 
sum  is  due  at  a  specific  time,  and  is  not  then  paid,  through  the  debt- 
or's fault,  the  American  common  law  awards  compensation  in  dam- 
ages for  the  wrong.  This  is  the  money  together  with  the  value  of 
its  use,  which  is  legal  interest  upon  it  during  the  time  the  defend- 
ant is  in  fault.*^     Interest  is  given  as  damages  for  the  detention  of 

8  6  LouisvUle  &  N.  R.  Co.  v.  Wallace,  91  Tenn.  35,  17  S.  W.  8S2. 

*  Ratteree  v.  Chapman,  79  Ga.  574,  4  S.  E.  684. 

3  7  Curtis  V.  Innerarity,  6  How.  146;  Whitworth  v.  Hart,  22  Ala.  343;  Cbeek 
V.  Waldrenn,  25  Ala.  152;  Flinn  v.  Barber,  64  Ala.  193;  Broughton  v.  Mitch- 
ell, Id.  210;  Caldwell  v.  Dunklin,  05  Ala.  461;  Talladego  Ins.  Co.  v.  Peacock, 
67  Ala.  2.j3;  Park  v.  Wiley,  Id.  310;  Peoria  M.  &  F.  Ins.  Co.  v.  Lewis,  18  111. 
653;  Clark  v.  Dutton,  69  lU.  521;  Harper  v.  Ely,  70  111.  581;  Dobbins  v. 
Higgins,  78  111.  440;  Knickerbocker  Ins.  Co.  v.  Gould,  80  III.  388;  Stern  v. 
People,  102  111.  540;  Hall  v.  Iluckins,  41  Me.  574;  Newson's  Adm'r  v.  Doug- 
lass, 7  Har.  &  J.  417;  Judd  v.  Dike,  30  Minn.  380,  15  N.  W.  072;  Buzzell  v. 
Snell,  25  N.  H.  474;  Stuart  v.  Biusse,  10  Bosvv.  436;  Gutta  Percha  &  Rub- 
ber Manuf  g  Co.  v.  Benedict,  37  N.  Y.  Super.  Ct.  430;  Spencer  v.  Pierce,  5  R. 
I.  63;  Hauxhurst  v.  Hovey,  26  Vt.  544;  Sampson  v.  Warner,  48  Vt.  247; 
Butler  V.  Kirby,  53  Wis.  188,  10  N.  W.  373;  Foote  v.  Blanchard,  6  Allen.  221. 
Interest  is  recoverable  on  legacies.  Custis  v.  Adkins,  1  Houst.  382;  Ilon- 
nlon's  Ex'rs  v.  Jacobus,  27  N.  J.  Eq.  28;  Vermont  State  B.nptlst  Convontion 
V.  Ladd,  58  Vt.  95,  4  Atl.  034.  "Whenever  the  debtor  knows  precisely  what 
he  Is  to  pay  and  when  he  is  to  pay,  he  shall  be  charged  with  Interest  if  he 


154  l.NTEKEST.  (Ch.    5- 

the  debt^*  The  time  the  money  is  due  fixes  the  time  of  default 
from  which  interest  runs.  Where  a  sura  certain  is  payable  at  a 
particular  time,  it  is  the  debtor^s  duty  to  pay  it  at  that  time;  and, 
if  he  does  not,  he  is  in  default,  and  liable  for  interest.^"     Where 

neglects  to  pay."  People  v.  County  of  New  York,  5  Cow.  331-334.  "When- 
ever it  is  ascertained  that  at  a  particular  time  money  ought  to  have  been 
paid,  whether  in  satisfaction  of  a  debt,  or  as  compensation  for  a  breach  of 
duty,  or  for  the  failure  to  keep  a  contract,  interest  attaches  as  an  incident." 
State  V.  Lott,  69  Ala.  147,  155.  Where  a  contract  provides  for  liquidated 
damages,  interest  is  recoverable  on  the  stipulated  amount  from  the  date  of 
the  breach.  Mead  v.  Wheeler,  13  N.  H.  351;  Little  v.  Banks,  85  N.  Y.  258; 
Winch  V.  Ice  Co.,  86  N.  Y.  618.  But  see  Yellow  Pine  Lumber  Co.  v.  Carroll, 
76  Tex.  135,  13  S.  W.  261  Interest  is  recoverable  on  the  amount  due  on  an 
insurance  policy.  Field  v.  Insurance  Co.,  G  Biss.  121,  Fed.  Cas.  No.  4,767; 
Swanscot  Mach.  Co.  v.  Partridge,  25  N.  H.  369,  380.     Cf.  Higgins  v.  Sargent, 

2  Barn.  &  C.  348.  Interest  is  recoverable  on  a  note,  after  maturity,  though 
it  did  not  bear  interest  by  its  terms.  Gibbs  v  Fremont,  9  Exch.  25;  Kitchen 
V.  Bank,  14  Ala.  233;  Swett  v.  Hooper,  62  Me.  54.  Where  a  note  reserves 
usurious  interest,  which  is  forfeited  by  statute,  legal  interest  is  recoverable 
after  maturity.     Fisher  v.  Bidwell,  27  Conn.  363. 

8  8  Mounson  v.  Redshaw,  1  Saund.  196-201,  note;  Osboume  v.  Hosier,  6 
Mod.  167;  Williams  v.  Bank,  1  Gilman,  667;  North  River  Meadow  Co.  v. 
Christ  Church,  22  N.  J.  Law,  425;  Sayre  v.  Austin,  3  Wend.  496;  Sumner  v. 
Beebe,   37  Vt.   562. 

39  A  municipal  corporation  need  not  seek  its  creditors,  and  is  therefore  not 
in  default  until  payment  is  demanded,  and  no  interest  can  be  recovered 
until  that  time.  Paul  v.  Mayor,  etc.,  of  New  York,  7  Daly,  144;  Yellowby 
V.  Commissioners,  73  N.  C.  164.  In  Wheeler  v.  County  of  Newberry.  18  S.  C. 
132,  and  Ashe  v.  County  of  Harris,  55  Tex.  49,  it  was  held  that  municipal 
corporations  were  not  liable  for  interest  at  all,  in  the  absence  of  contract  or 
statute.  The  same  result  was  reached  in  Illinois  and  Mississippi  by  interpre- 
tation of  the  statutes.  City  of  Pekin  v.  Reynolds,  31  111.  529;  City  of  Chicago 
V.  People,  56  111.  327;  Board  of  Sup'rs  of  Warren  Co.  v.  Klein,  51  Miss.  807; 
Board  of  Sup'rs  of  Clay  Co.  v.  Board  of  Sup'rs  of  Chickasaw  Co.,  64  Miss.  534, 
1  South.  753.  And  in  Pennsylvania  it  is  held  that  debts  are  not  payable  until 
there  are  funds  on  hand,  as  debts  are  payable  only  out  of  taxes.  Allison  v, 
Juniata  Co.,  50  Pa.  St.  351.  The  state  is  not  liable  for  interest.  Whitney  v. 
State,  52  Miss.  732.  In  some  jurisdictions  interest  is  allowed  on  claims 
against  municipal  corporations  after  demand.     Robbins  v.  Lincoln  Co.  Court 

3  Mo.  57;  Risley  v.  Andrew  Co.,  46  Mo.  382;  Paul  v.  Mayor,  etc.,  of  New  York, 
7  Daly,  144;  Yellowby  v.  Commissioners  of  Pitt  Co.,  73  N.  C.  164.  And  see 
Jacks  V.  Turner,  36  Ark.  89.  Where  for  any  reason  the  defendant  is  not  re- 
sponsible for  the  delay  in  payment  he  is  not  chargeable  with  interest.     Thus 


§    63)  PECUNIARY    LOSSES LIQUIDATED    DEMANDS.  15-5- 

money  is  due  on  demand,  interest  runs  from  the  time  of  demand; 
and  the  bringing  of  an  action  is  a  demand.  Where  the  defendant's 
own  act  makes  a  demand  useless  or  impossible,  interest  may  be  re- 
covered from  the  date  of  such  act. 

tender   of  a   sufficient  amount   will   stop   the  accruing   of   interest,    even   in 
actions  of  tort.    Thompson  v.  Boston  &  M.  R.,  58  N.  H.  524.    Where  the  debtor 
is  forbidden  by  law  to  pay  the  debt,  he  is  not  liable  for  interest  during  the 
delay.    Thus  trustee  process  or  injunction  will  interrupt  the  running  of  inter- 
est.   Le  Grange  v.  Hamilton,  4  Term  R.  613;   Hamilton  v.  Le  Grange,  2  H.  Bl. 
144;    Osborn  v.  Bank,  9  Wheat.  738;    Bainbridge  v.  Wilcocks,  Baldw.  536, 
Fed.  Cas.  No.  755;    Willings  v.  Consequa,  Pet.  C.  C.  172,  301,  Fed.  Cas.  Nos. 
17,766,  17,767;   Norris  v.  Hall,  18  Me.  332;    Oriental  Bank  v.  Tremont  Ins.  Co. 
4  Mete.  CNIass.)  1;    Bickford  v.  Rich,  105  Mass.  340;   Huntress  v.  Burbank,  111 
Mass.  213;   Smith  v.  Flanders,  129  Mass.  322;   Le  Branthwait  v.  Halsey,  9  N. 
J.  Law,  3;   Kellogg  v.  Hickok,  1  Wend.  521;   Stevens  v.  Barringer,  13  Wend. 
639;    Fitzgerald  v.  Caldwell,  2  Dall.  215,  1  Yeares,  274;    Jackson's  Ex'rs  v. 
Lloyd,  44  Pa.  St.  82.     In  some  states  a  garnirhet  Oi   person  enjoined  must 
bring  the  money  into  court,  or  he  will  be  chargeable  with  interest.    Kirkuian 
V.  Vanlier,  7  Ala.  217;   Godwin  v.  McGehee,  19  Ala.  468;   Bullock  v.  Ferguson, 
30  Ala.  227;    Curd  v.  Letcher,  3  J.  J.  Marsh.  443;    Smith  v.  Bank,  60  Miss.  69. 
Candee  v.  Webster,  9  Ohio  St.  452;   Templeman  v.  Fauntleroy,  3  Rand.  (Va.) 
434.     If  the  garnishee  denies  his  indebtedness,  or  is  in  collusion  with  either 
party,  he  is  liable  for  interest.     Work  v.  Glaskins,  33  Miss.  539;    Stevens  v. 
Gwathmey,  9  Mo.  636;   Rushton  v.  Rowe,  64  Pa.  St.  63;   Jones  v.  Manufactur- 
ers' Nat.   Bank,   99  Pa.   St.  317.     So,   also,   if  he  actually   used  the  money. 
Mattingly  v.  Boyd,  20  How.  128;   Norris  v.  Hall,  18  Me.  332.     In  such  case  in- 
terest is  allowed  at  the  market  rate,  not  the  statutory  rate.   Greenish  v.  Stand- 
ard Sugar  Refinery,  2  Low.  553,  Fed.  Cas.  No.  5,770.     Interest  as  damages 
does  not  accrue  in  time  of  war,  where  the  debtor  is  in  one  hostile  country  and 
the  creditor  in  the  other.   Interest  accruing  by  contract  is  not  affected.   Hoare 
V.  Allen,  2  Dall.  102;    Foxcraft  v.  Nagle,  Id.  132;    Bigler  v.  AValler,  Chase,  310, 
Fed.  Cas.  No.  1,404;   Mayer  v.  Reed,  37  Ga.  482;   Selden  v.  Preston,  11  Bush, 
191;    Bordley  v.  Eden,  3  Har.  &  McH.  167;    Bnnver  v.  Hastie,  3  Call,  22; 
Lash  V.  Lambert,  15  Minn.  416  (Gil.  336);    Brown  v.  Hiatts,  15  Wall.  177.     If 
the  creditor  has  an  agent  in  the  same  country  with  the  debtor,  interest  docs 
not  cease;    for  it  is  the  debtor's  duty  to  pay  the  agent.     Ward  v.  Smith,  7 
Wall.  447;    Conn  v.  Penn,  Pet.  C.  C.  490,  Fed.  Cas.  No.  3,802;    Deuniston  v. 
Irabrie,  3  Wash.  C.  C.  396,  note,  Fed.  Cas.  No.  3,104.    And  see  Bean  v.  Chap- 
man, 02  Ala.  .58.     Generally,  as  to  what  will  relieve  a  debtor  from  interest, 
see  Miller  v.  Bank  of  New  Orleans,  5  Whart.  503;    Rodlicld  v.  Ystalyfora  Iron 
Co.,  110  U.  S.  174,  3  Sup.  Ct.  570;    BartcUs  v.  KcMlfH-ld.  27  Fed.  2S6;    Stcw.-irt 
V.  Schell,  31  Fed.  65;    Jane  v.  Hagen,  10  Humph.  :•.:!•_'.     Whore  the  li:ippi>iiing 
of  an  event  upon  which  a  debt  was  to  become  due  was  niikiiown  to  dffi-iHlaiit, 


156  INTEREST.  (Ch.   5 

Moiieu  Wrongfully  Acquired  or  Used. 

Where  one  acquires  money  to  which  he  has  no  right,  it  is  his  duty 
to  pay  it  over  immediately;  and,  if  he  fails  to  do  so,  he  is  charge- 
but  was  not  within  the  special  knowledge  of  plaintiff,  tbe  defendant  is  never- 
theless liable  for  interest.     Sumner  v.  Beebe,  37  Vt.  562. 

INTEREST  ON  TAXES.  Interest  is  not  recoverable  on  delinquent  taxes,  in 
the  absence  of  statute.  Perry  Co.  v.  Selma,  M.  &  M.  It.  Co.,  65  Ala.  391;  Perry 
V.  Washburn,  20  Cal.  318.  350;  Danforth  v.  Williams,  9  Mass.  324.  Where  one 
wrongfully  enjoins  the  collection  of  taxes  from  himself,  he  is  liable  for  in- 
terest. Rosenberg  v.  Weekes,  67  Tex.  578,  4  S.  W.  899.  It  has  been  held  that 
interest  is  not  recoverable  on  the  quota  of  taxes  due  from  a  county  to  the 
state.  State  v.  Multnomah  Co.,  13  Or.  287,  10  Pac.  635.  Contra,  State  v.  Van 
Winkle,  43  N,  J.  Law,  125.  Interest  is  recoverable  on  special  taxes  assessed 
against  abutting  owners  for  street  improvements.  Gest  v.  City  of  Cincinnati, 
26  Ohio  St.  275. 

FINES  AND  PENALTIES.  Interest  is  not  recoverable  on  fines  and  penal- 
ties. State  V.  Steen,  14  Tex.  396;  Higley  v.  First  Nat.  Bank,  26  Ohio  St.  75. 
A  statute  allowing  the  highest  market  value  of  property  destroyed  between 
the  time  of  destruction  and  the  trial  provides  for  a  penalty,  and  interest  is 
not  recoverable.  Smith  v.  Morgan,  73  Wis.  375,  41  N.  W.  532;  Central  Rail- 
road &  Banking  Co.  v.  Atlantic  &  G.  R.  Co.,  50  Ga.  444;  Ware  v.  Simmons, 
55  Ga.  94. 

INTEREST  ON  JUDGMENTS.  It  is  usually  held  that  interest  is  recover- 
able in  an  action  of  debt  on  a  judgment,  regardless  of  whether  the  original 
demand  carried  interest  or  not.  Klock  v.  Robinson,  22  Wend.  157.  It  is  held 
In  some  states  to  be  recoverable  by  common  law.  Perkins  v.  Fourniquet,  14 
How.  328,  331;  Crawford  v.  Simonton's  Ex'rs,  7  Port  (Ala.)  110;  Gwinn  v. 
Whitaker's  Adm'x,  1  Har.  &  J.  754;  Hodgdon  v.  Hodgdon,  2  N.  H.  169;  Ma- 
hurin  v.  Bickford,6  N.  H.  567;  Harrington  v.  Glenn,  1  Hill  (S.  C.)  79;  Nelson 
V.  Felder,  7  Rich.  Eq.  395;  Beall  v.  Silver,  2  Rand.  (Va.)  401;  Mercer's  Adm'r 
V.  Beale,  4  Leigh,  189;  Booth  v.  Ableman,  20  Wis.  602.  It  is  recoverable  by 
statute.  Dougherty  v.  Miller,  38  Cal.  548;  Brigham  v.  Vaubuskirk,  6  B.  Mon. 
197;  Todd  v.  Botchford,  86  N.  Y.  517;  Coles  v.  Kelsey,  13  Tex.  75;  Hagood  v. 
Ailcin,  57  Tex.  511.  It  was  held  not  recoverable,  without  statute,  in  Reece  v. 
Knott,  3  Utah,  451,  24  Pac.  757.  See,  also,  Guthrie  v.  Wickliffs,  4  Bibb,  541; 
€ogsweU's  Heirs  v.  Lyon,  3  J.  J.  Marsh.  38.  A  levy  on  a  judgment  or  a  scire 
facias  cannot  include  interest,  in  the  absence  of  statute.  Perkins  v.  Fourni- 
quet, 14  How.  328,  331;  Solen  v.  Virginia  &  T.  R.  Co.,  14  Nev.  405;  Barron 
V.  Morrison,  44  N.  H.  226;  Watson  v.  Fuller,  6  Johns.  283;  Mann's  Ex'rs  v. 
Taylor,  1  McCord,  171:  Williamson  v.  Broughton,  4  McCord,  212;  Hall  v. 
Hall,  8  Vt.  156. 

INTEREST  BETWEEN  VERDICT  AND  JUDGMENT.  Interest  between 
■verdict  and  judgment  is  regulated  by  statute  in  almost  all  jurisdictions.     Va- 


§    64)  PECUMAin'    LOSSES UNLIQUIDATED    DEMANDS.  157 

able  with  interest.*''  Where  one  lawfully  acquires  money  belonging 
to  another,  but  improperly  converts  it  to  his  own  use,  or  withholds 
it  after  it  is  his  duty  to  pay  it  over,  he  is  liable  for  interest  from  the 
time  of  its  conversion  or  detention. 


SAME— PECUNIARY  LOSSES— UNLIQUIDATED  DEMANDS. 

64.  In  actions  "where  the  injury  is  \«rholly  pecuniary,  in-^ 
terest  is  recoverable  as  of  right,  -whether  the  loss 
is  liquidated  or  unliquidated. 

EXCEPTION — In   many  jurisdictions,  -where  the  loss  is 
unliquidated,  interest  is  discretionary  -with  the  jury. 

In  all  cases,  either  of  tort  or  contract,  where  the  loss  is  wholly 
pecuniary,  and  may  be  fixed  as  of  a  definite  time,  interest  should 
be  allowed  as  a  matter  of  right,  whether  the  loss  is  liquidated  or 
unliquidated.  Into  these  cases  the  element  of  time  enters  as  an  im- 
portant factor,  and  the  plaintiff  will  not  be  fully  compensated  unless 
he  receive,  not  only  the  value  of  what  he  has  lost,  but  receive  it  as- 
nearly  as  may  be  as  of  the  date  of  his  loss.  Hence,  additional  dam- 
ages in  the  nature  of  interest  for  the  lapse  of  time  should  be  al- 
lowed. It  is  never  interest  as  such,  but  compensation,  for  the  delay 
of  which  the  rate  of  interest  affords  the  fair  legal  measure.*^  It 
has  been  seen  that  interest  is  universally  allowed  in  actions  for  non- 
payment of  liquidated  demands.     It  is  in  the  case  of  unliquidated 

rious  rules  prevail.  See  Hallum  v.  Dickinson,  47  Ark.  120,  14  S.  W.  477; 
Baltimore  City  Pass.  Ry.  Co.  v.  Sewell,  37  Md.  443;  Lord  v.  Mayor,  etc.,  of 
City  of  New  York,  3  Hill.  42G;  Henning  v.  Van  Tyne,  19  Wend.  101;  Kelsoy  v. 
Murphy,  30  Pa.  St.  340;  Norris  v.  City  of  Philadolpliia,  70  Pa.  St.  332;  Dowel! 
V.  Griswold,  5  Sawy.  23,  Fed.  Cas.  No.  4,040;  Swails  v.  Cissna,  61  Iowa,  GU3. 
17  N.  W.  39;  Irvin  v.  Hazleton,  37  Pa.  St.  465;  Gibson  v.  Cincinnati  Enquirer, 
2  Flip.  88,  Fed.  Cas.  No.  5,391;  Com.  v.  Boston  &  M.  R.  Co.,  3  Cush.  25; 
Johnson  v.  Atlantic  &  St.  L.  R.  Co.,  43  N.  H.  410;  McLimans  v.  City  of 
Lancaster,  65  Wis.  240,  26  N.  W.  .566;  McKim  v.  Blake,  139  Mass.  ,593.  2  N. 
E.  157. 

ON  APPEAL.  Interest  is  often  allowed  as  damages  for  a  frivolous  or  vexa- 
tious appeal.    Its  allowance  is  regulated  by  statute. 

■«o  Interest  is  recovernljle  on  money  obtained  by  false  representations.  Ar- 
thur V.   Wheeler  &   WMlson    Mnnuf'g  Co.,   12   Mo.   Ai)p.  335. 

•1  Kicli.'irds  V.  Gas  Co.,   130  I'a.  St.  \',1,   IS  Atl.  COD. 


158  INTKKF.ST.  (Ch.    5 

demands  that  the  greatest  confusion  and  uncertainty  is  met  with. 
The  confusion  arises  from  the  idea  that  the  allowance  of  interest  as 
damages  proceeds  on  the  theory  that  defendant  is  in  default  for  not 
paying  without  delay.  Thus  it  is  said:  "Interest  is  denied  when 
the  demand  is  unliquidated,  for  the  reason  that  the  person  liable 
does  not  know  what  sum  he  owes,  and  therefore  cannot  be  in  default 
for  not  paying."  *2  The  reason  given  has  no  relevancy  to  the  ques- 
tion at  issue.  It  may  be  conceded  that,  where  defendant  is  not  re- 
sponsible for  the  delay,  he  cannot  justly  be  charged  with  interest. 
But  if  one  causes  a  loss  which  is  in  its  nature  unliquidated,  and 
which  must  therefore  be  submitted  to  a  jury,  he  is  clearly  liable  for 
the  necessary  delay.  The  damages  caused  by  such  delay  are  clearly 
a  proximate  result  of  the  original  wrong.  These  damages  are  meas- 
ured by  the  rate  of  interest,  and  the  wrongdoer  is  clearly  liable  on 
principle.  Interest,  as  damages,  is  given  as  compensation  for  loss 
suffered  by  the  detention  of  money,  and  the  loss  suffered  is  equally 
great  whether  the  demand  is  liquidated  or  unliquidated.  Thus  it 
was  said,  by  the  Massachusetts  court,  in  an  action  for  the  negligent 
destruction  of  property:  "We  have  heard  no  reason  suggested  why, 
if  a  plaintiff  has  been  prevented  from  having  his  damages  ascer- 
tained, and  in  that  sense  has  been  kept  out  of  the  sum  that  would 
have  made  him  whole  at  the  time,  so  long  that  that  sum  is  no  longer 
an  indemnity,  the  jury,  in  their  discretion,  and  as  incident  to  de- 
termining the  amount  of  the  original  loss,  may  not  consider  the  de- 
lay caused  by  the  defendant.  In  our  opinion,  they  may  do  so;  and, 
if  they  do,  we  do  not  see  how  they  can  do  it  more  justly  than  by 
taking  interest  on  the  original  damage  as  a  measure."  *^  The  New 
York  court  said,  in  an  action  of  nondelivery  of  goods  sold:  "Inter- 
est is  a  necessary  item  in  the  estimate  of  damages  in  this  class  of 
cases.  The  party  is  entitled,  on  the  day  of  performance,  to  the  prop- 
erty agreed  to  be  delivered.  If  it  is  not  delivered,  the  law  gives, 
as  the  measure  of  compensation  then  due,  the  difference  between  the 
contract  and  market  prices.  If  he  is  not  also  entitled  to  interest 
from  that  time,  as  a  matter  of  law,  this  contradictory  result  follows: 
that,  while  an  indemnity  is  professedly  given,  the  law  adopts  such 
.a  mode  of  ascertaining  its  amount  that,  the  longer  a  party  is  delayed 

*2  Suth.  Dam.  §  347. 

43  Frazer  v.  Carpet  Co.,  141  Mass.  127,  4  N.  E.  G20. 


%    64)  PECUNIARY    LOSSES UNLIQUIDATED    DEMANDS.  159 

in  obtaining  it,  the  greater  shall  its  inadequacy  become.  It  is,  how- 
ever, conceded  to  be  law  that,  in  these  cases,  the  jury  may  give  in- 
terest, by  way  of  damages,  in  their  discretion.  Now,  in  all  cases, 
unless  this  be  an  exception,  the  measure  of  damages,  in  an  action 
upon  a  contract  relating  to  money  or  property,  is  a  question  of  law, 
and  does  not  at  all  rest  in  the  discretion  of  the  jury."  ** 

It  would  seem  too  clear  for  argument  that,  where  interest  is  a 
necessary  part  of  complete  or  even  approximate  indemnity,  the  in- 
jured person  should  be  entitled  to  it  as  a  matter  of  law,  and  it  should 
not  be  left  to  the  discretion  of  a  jury.  The  measure  of  damages  is  in 
all  cases  a  matter  of  law,  though,  where  the  injury  is  nonpecuniary, 
the  jury  necessarily  determines  the  amount.  The  decisions  are  far  from 
harmonious, however, in  this  class  of  cases.  In  many  jurisdictions  the 
allowance  of  interest  is  still  held  to  be  within  the  discretion  of  the 
jury.  In  some  jurisdictions  it  may  depend  upon  the  form  of  action. 
Thus,  in  Massachusetts,  if  the  action  is  trover,  interest  is  recoverable 
as  a  matter  of  law;  whereas,  if  the  action  is  case  for  negligently 
destroying  property,  interest  is  discretionary  with  the  jury.*''  The 
above  principles,  it  is  believed,  ought  to  govern  allowance  of  inter- 
est as  damages  in  all  cases;  but  it  is  impossible  to  say  that  they 
are  yet  the  law.  Perhaps  the  majority  of  cases  proceed  upon  the 
principle,  already  mentioned,  that  defendant  must  be  in  default  for 
not  making  payment,  or  interest  cannot  be  recovered.     The  argu- 

*4  Dana  v.  Fiedler,  12  N.  Y.  40.  The  court  said  further:  "If  the  giving  or 
refusing  interest  rests  in  discretion,  the  law,  to  be  consistent,  should  furnish 
some  legitimate  means  of  influencing  its  exercise  by  evidence,  as  by  showing 
that  the  party  in  fault  has  failed  to  perform,  either  willfully  or  by  mere 
accident  and  without  any  moral  misconduct.  All  such  considerations  are  con- 
stantly excluded  from  a  "jury,  and  they  are  properly  told  that,  in  such  an  ac- 
tion, their  duty  is  to  inquire  whether  a  breach  of  the  contract  has  happened, 
not  what  motives  induced  the  breach.  That  by  law  a  party  is  to  have  tlie 
difference  between  the  contract  price  and  the  market  price,  in  order  that  he 
may  be  indemuifiod,  and  because  that  rule  affords  the  measure  of  his  injury 
when  it  occurred;  that  he  may  not,  as  matter  of  law,  recover  interest,  which 
is  necessary  to  a  complete  indemnity;  that,  nevertlioless,  the  jury  may,  in 
their  discretion,  give  him  a  complete  indemnity,  by  including  the  amount  of 
interest  In  their  estimate  of  his  damages,  but  that  lie  may  not  give  any  evi- 
dence to  influence  their  discretion,— presents  a  series  of  propositions  some  of 
which  cannot  be  law."     Dana  v.  Fiodlor,  12  N.  Y.   10. 

48  Frazer  v.  Carpet  Co.,  141  Mass.  12f!,  1  X.  E.  (120. 


.U)0  INTEREST.  (Ch.   5 

ment  seems  to  be  that,  as  one  cannot  pay  or  make  tender  until  botb 
the  time  and  the  amount  have  been  ascertained,  one  cannot  be  in  de- 
fault for  not  paying  until  the  verdict.  The  fallacy  of  this  theory 
has  been  already  pointed  out;  but,  as  many  cases  are  decided  upon 
it,  it  must  be  constantly  borne  in  mind  in  considering  the  actual 
state  of  the  law.  The  following  is  the  result  of  the  decisions  upon 
this  theory: 

65.  CONTRACTS — In  actions  ex  contractu,  -w^here  the  dam- 
ages are  unliquidated,  interest  is  usually  recovera- 
ble, as  a  matter  of  la"w: 

(a)  From   the   time   of  the   breach,  where   the  damages 

can  be  made  certain  by  simple  computation,  or  by 
reference  to  recognized  standards  such  as  market 
value  (p.  160). 

(b)  From  the  time  of  demanding  an  accounting,  -where 

the  demand  is  reasonable,  and  therefore  puts  de- 
fendant in  default  for  not  paying  the  amount  which 
w^ould  have  been  found  due  (p.  161). 

(c)  From  the  date  of  the  writ  (p.  161). 

One  cannot  pay  or  make  tender  until  both  the  time  and  the  amount 
due  have  been  ascertained.  As  to  time,  in  actions  either  for  breach 
of  contract  or  tort,  compensation  is  due  as  soon  as  the  amount  is  or 
should  be  ascertained,  and  therefore  defendant  cannot  be  charged 
with  interest  before  that  time.  In  actions  for  breach  of  contract, 
the  allowance  of  interest  is  a  question  of  law  for  the  court.*" 

Damages  Made.  Qertaia  by  Oompiitalioii  or  Reference  to  Recognized  Standards. 
The  old  common-law  rule,  which  required  that  a  demand  should 
be  liquidated,  or  its  amount  in  some  w'ay  ascertained,  before  inter- 
est could  be  allowed,  has  been  generally  modified  so  far  as  to 
hold  that,  if  the  amount  is  capable  of  being  ascertained  by  mere 
computation,  then  it  shall  carry  interest.*^  "Id  certum  est,  quod 
reddere  certum  potest."     So,  also,  where  th3  amount  can  be  as- 

*8  Mansfield  v.  New  York  Cent.  &  H.  R.  R.  Co.,  114  N.  Y.  331,  21  N.  E.  735, 
1037. 
47.McMabon  v.  Railroad  Co.,  20  N.  Y.  463. 


§    65)  PECUNIARY    LOSSES UNLIQUIDATED    DEMAND-.  161 

ceilained  by  computation,  together  with  a  reference  to  well-estab- 
lished market  values,  interest  is  recoverable;  for  such  values  are  so 
nearly  certain  that  the  debtor  can  obtain  some  proximate  knowledge 
of  how  much  he  has  to  pay.*® 

Demand  for  Accounting — Commencement  of  Suit. 

Where  the  plaintiff  has  made  a  reasonable  demand  for  an  ac- 
counting, and  defendant  fails  to  accede  to  it,  or  to  pay  the  amount 
which  would  have  been  found  due,  he  is  in  default  from  the  date 
of  demand,  and  chargeable  with  interest.*®  A  demand  for  a  sum 
assumed  to  be  due  may  be  considered  a  sufficient  demand  for  a  set- 
tlement, if  the  sum  is  a  reasonable  one.^°  The  cases  are  not  har- 
monious. Some  hold  that  interest  is  recoverable  from  the  begin- 
ning of  the  suit.^^     This  may  be  sustained  on  principle,  if  the  bring- 

48  Van  Rensselaer  v.  Jewett,  2  N.  Y.  135;  McMahon  v.  New  York  &  E.  R. 
Co.,  20  N.  Y.  463;  Mansfield  v.  New  York  Cent.  &  H.  R.  R.  Co.,  114  N.  Y.  331, 
21  N.  E.  735,  1037;  Sipperly  v.  Stewart,  50  Barb.  62;  Smith  v.  Velie,  60  N.  Y. 
106.  In  an-  action  for  breach  of  a  contract  to  deliver  property  at  a  certain 
time,  interest  is  recoverable  on  the  value  of  the  property  from  that  time. 
Pujol  V.  McKinlay,  42  Cal.  559;  Bickell  v.  Colton,  41  Miss.  368;  Bicknall  v. 
Waterman,  5  R.  I.  43;  Merryman  v.  Griddle,  4  Munf.  (Va.)  542;  Enders  v. 
Board  of  Public  Works,  1  Grat.  (Va.)  364,  390;  Van  Rensselaer's  Ex'rs  v. 
Jewett,  5  Denio,  135,  2  N.  Y.  135;  Van  Rensselaer  v.  Jones,  2  Barb.  643: 
Livingston  v.  Miller,  11  N.  Y.  SO;  McKenney  v.  Haines,  63  Me.  74;  Savannah 
&  C.  R.  Co.  V.  Callahan,  56  Ga.  331;  Inhabitants  of  Canton  v.  Smith,  65  Me. 
20.3-209.  Contra,  Dobenspeck  v.  Ormel,  11  Ind.  31.  In  Stark's  Adm'r  v.  Price, 
5  Dana,  140,  it  was  held  to  be  discretionary  with  the  jury.  Where  the  goods 
have  not  been  paid  for,  interest  is  recoverable  on  the  difference  between  the 
contract  and  the  market  price.  Dana  v.  Fiedler,  12  N.  Y.  40;  Cease  v.  Cockle, 
76  111.  484;  Driggers  v.  Bell,  94  111.  223;  Thomas  v.  Wells,  140  Mass.  517,  5  N. 
E.  485;  Clark  v.  Dales,  20  Barb.  42;  Hamilton  v.  Ganyard,  34  Barb.  204; 
Fishell  V.  Winans,  38  Barb.  228;  Currie  v.  White,  6  Abb.  Prac.  (N.  S.)  352, 
385. 

•iOGray  v.  Van  Amringe,  2  Watts  &  S.  128. 

BO  Adams  v.  Fort  Plain  Bank,  36  N.  Y.  255;  Mygatt  v.  Wilcox,  45  N.  Y.  30(i; 
Hand  v.  Church,  39  Hun,  303.  Contra,  People  v.  Supervisors  of  Delaware,  !t 
Abb.  Prac.  (N.  S.)  408.  A  demand  for  an  unreasonably  large  sum  will  not 
put  defendant  in  default.  Goff  v.  inhabitant.s  of  Uehobotli,  2  Cusli.  475;  Sliip- 
man  v.  State,  44  Wis.  458. 

81  Goddard  v.  Foster,  17  Wall,  123;  Mercer  v.  Vose,  67  N.  Y.  5(;;  Il.iiid  v. 
Church,  39  Hun,  303;  Gammon  v.  Abrams,  53  Wis.  323,  10  N.  W.  17!t:  'luckor 
V.  Grover,  00  Wis.   210,  19  N.  W.  62;    McCollum  v.  Sewnrd,  62   .N.    Y.  316, 

I,AW  DAM.  — 11 


1G2  INTEREST.  (Ch.  5 

injj  of  suit  is  considered  a  demand;  but  it  is  hard  to  see  why  the 
Lrino-iug  of  a  suit  should  set  interest  running,  if  a  demand  will 
not.''^  Other  cases  hold  that  interest  is  recoverable  only  after  ver- 
dict, for  the  amount  is  not  liquidated  until  then.^'  Where  defend- 
ant reduces  plaintiff's  recovery  by  a  recoupment,  the  demands  on 
both  sides  are  unliquidated,  and  interest  on  the  balance  is  usually 
allowed  only  from  verdict."**  If  it  was  defendant's  duty  to  liquidate 
the  debt,  and  he  fails  to  do  so,  he  is  clearly  in  default,  and  charge- 
able with  interest.^**  But,  ordinarily,  when  plaintiff  makes  no  de- 
mand for  payment  or  accounting,  interest  is  not  recoverable,  for 
defendant  is  not  in  default.^* 

66.  TORTS — In  actions  ex  delicto,  interest  is  recoverable 

in   proper   cases,    sometimes   as  a  matter   of   legal 
right,  and  sometimes  in  the  discretion  of  the  jury. 

67.  In  determining  -when  interest  is  recoverable,  the  fol- 

lo-wing  rules  may  be  stated: 

(a)  Interest  is  never  recoverable  on  discretionary  dam- 

ages (p.  163). 

(b)  "Where  there  is  a  pecuniary  loss,  of  such  a  nature  as 

to  deprive  one  of  title  to  a  specific  thing,  or  vrhich 

Feeter  v.  Heath,  11  Weud.  478;  McCormick  v.  Railroad  Co.,  49  N.  Y.  303; 
Hewitt  V.  Lumber  Co.,  77  Wis.  548,  40  N.  W.  822.  "Where  interest  is  refused 
In  actions  of  contract,  on  the  ground  that  the  claim  is  unliquidated,  it  is  in 
fact  usually  allowed  from  the  date  of  the  writ."    Sedg.  Dam.  §  315. 

B2  White  v.  Miller,  78  N.  Y.  393;  McMaster  v.  State,  108  N.  Y.  542,  15  N.  E. 
417. 

63  Cox  V.  McLoughlin,  76  Cal.  60,  18  Pac.  100;  Murray  v.  Ware's  Adm'r, 
1  Bibb,  325;  McKnight  v.  Dunlop.  4  Barb.  36;  Pursell  v.  Fry,  19  Hun,  595; 
Day  V.  Railroad  Co.,  22  Hun,  412;   Martin  v.  State,  51  Wis.  407,  8  N.  W.  248. 

0  4  The  Isaac  Newton,  1  Abb.  Adm.  588,  Fed.  Cas.  No.  7,090;  Brady  v.  Wil- 
coxson,  44  Cal.  239;  Still  v.  Hall,  20  Wend.  51;  McMaster  v.  State,  108  N.  Y. 
542.  15  N.  E.  417.  In  Palmer  v.  Stockwell,  9  Gray,  237,  interest  was  al- 
lowed on  the  balance  recovered  from  the  date  of  the  writ. 

66  Moore  v.  Patton,  2  Port  (Ala.)  451;  McMahon  v.  Railroad  Co.,  20  N.  Y. 
463;  Ansley  v.  Peters,  1  Allen  (N.  B.)  339;  Robinson  v.  Stewart,  10  N.  Y.  IS!). 
197. 

86  Adams  Exp.  Co.  v.  Milton,  11  Bush,  49;  Gallup  v.  Perue,  10  Hun.  .")2": 
People  V.  Supervisors,  9  Abb.  Prac.  (N.  S.)  408;  Marsh  v.  Eraser,  37  Wis.  149: 
is'ewell  V.  Keith,  11  Vt.  214. 


§§    66—67)         PECUNIARY    LOSSES UNLIQUIDATED    DEMANDS.  163 

is  so  regarded,  interest  is  recoverable  on  the  value 
of  the  property,  as  a  matter  of  legal  right  (p.  163). 
(c)  Where  there  is  a  pecuniary  loss,  but  not  such  as  to 
deprive  one  of  title  to  any  specific  thing,  the  jury 
may  usually  add  interest,  in  their  discretion,  to 
make  the  compensation  adequate  (p.  165). 

Interest  on  Discretionary  Damages. 

Where  the  damages  caused  by  a  tort  are  not  only  unascertained, 
but  unascertainable,  save  by  the  enlightened  conscience  of  a  jury, 
interest  cannot  be  recovered. ^^  Nor  can  interest  be  allowed  in  cases 
where  exemplary  damages  may  be  recovered.''*  Sums  ascertainable 
only  by  the  enlightened  conscience  of  a  jury  do  not  bear  interest 
before  verdict,  either  as  interest  or  as  damages,  within  the  discre- 
tion of  the  jury  or  without.  Cases  of  this  nature  always  involve 
nonpecuniary  elements  of  injury,  and  have  already  been  suflQciently 
explained.  The  jury  have  no  such  discretion  when  only  actual  pe- 
cuniary damage  is  involved. 

Property  Destroyed,  Taken,  Converted,  and  the  Like. 

Where  property  is  destroyed  or  converted,  the  title  is,  or  may  be 
regarded  as,  out  of  the  original  owner.  The  right  to  recover  a  pe- 
cuniary equivalent  vests  absolutely,  at  once;  and,  as  we  have  seen, "" 
compensation  for  the  loss  of  future  use  of  the  property  cannot  be 
recovered,  but  only  compensation  for  the  detention  of  money,  i.  e. 
interest.  Therefore,  in  actions  of  trover,  trespass,  replevin,  and  the 
like,  interest  is  recoverable  on  the  value  of  the  property  from  the 
time  of  the  taking.^"     The  right  to  interest  as  a  part  of  the  damages, 

0  7  Western  &  A.  R.  Co,  v.  Young,  81  Ga.  397,  7  S.  E.  912;  Pittsburgh,  S.  Ry. 
Co.  V.  Taylor,  104  Pa.  St.  30G. 

68  Ratteree  v.  Chapman,  4  S.  E.  G84,  79  Ga.  574. 

5  9  Ante,  p.  2. 

«o  Ekins  v.  East  India  Co..  1  P.  Wms.  395;  Hamer  v.  Hathaway,  33  Cal. 
117;  Clark  v.  Whitaker,  19  Conn.  320;  Tuller  v.  Carter,  59  Ga.  395;  Sanders 
V.  Vance,  7  T.  B.  Mon.  209;  New  Orleans  Draining  Co.  v.  De  Lizardi.  2  La. 
Ann.  281;  Hayden  v.  Bartlett,  35  Me.  203;  Moody  v.  Whitney,  38  Me.  174; 
Robinson  v.  Barrows,  48  Me.  ISG;  Hepburn  v.  Sewell,  5  Har.  &  J.  211; 
Thomas  v.  Sternheimer,  29  Md.  208;  Maury  v.  Coyle,  34  Md.  235;  Kennedy  v. 
Whitwell,  4  Pick.  400;  NoguH  v.  Simpson,  99  Mass.  .'{88;  Winclioster  v.  Craig, 
33  Mich.  205;    Chauncy  v.  Yeaton,  1  N.  II.  151;   Hyde  v.  Stone.  7  Wend.  354; 


IG-t  INTEREST.  (Ch.   5- 

in  actions  of  trover  and  trespass  de  bonis  asportatis,  was  given,  first, 
in  England,  by  the  statute  of  3  &  4  Wm.  IV.  By  that  statute, 
the  allowance  was  discretionary  with  the  jury.  Early  cases  in  this- 
country  followed  the  English  rule,  ®^  but  gradually  the  principle  that 

Baker  v.  Wheeler,  8  Wend.  505;    Stevens  v.  Low,  2  Hill,  132;    Andrews  v, 
Durant,  18  N.  Y.  496;    McDonald  v.  North,  47  Barb.  530;    Pease  v.  Smith,  5- 
Lans.  519;  Wehle  v.  Butler,  43  How.  Prac.  5;   Commercial  Bank  v.  Jones,  18^ 
Tex.  Sll;    Gillies  v.  Wofford,  2G  Tex.  76;    Willis  v.  McNott,  75  Tex.  6D,  12  S. 
W.  478;    Rhemke  v.  Clinton,  2  Utah,  230;    Grant  v.  King,  14  Vt.  367;    Thrall 
V.  Lathrop,  30  Vt.  307;   Shepherd  v.  McQuilkin,  2  W.  Va.  90;   Bigelow  v.  Doo- 
littlo,  36  Wis.  115.     Contra,  Palmer  v.  :Murray,  8  Mont.  312,  21  Pac.  126.     In 
Stephens  v.  Koonce,  103  N.  C.  266,  9  S.  E.  315,  the  allowance  was  held  dis- 
cretionary with  the  jury.     Where  demand  is  necessary  to  establish  the  con- 
version, interest  is  recoverable  only  from  demand.     Garrard  v.  Dawson,  49- 
Ga.  434;    Northern  Transp.  Co.*  v.  Sellick,  52  111.  249;    Johnson  v.  Sumner,  1 
Mete.  (Mass.)  172;    Schwerin  v.  McKie,  51  N.  Y.  ISO.     In  an  action  against  a 
common  carrier  for  the  loss  of  goods,   interest   is   allowed   on   their  value. 
Mobile  &  M.  Ry.  Co.  v.  Jurey,  111  U.  S.  584,  4  Sup.  Ct.  566;    Woodward  v. 
Railroad  Co.,  1  Biss.  403,  Fed.  Cas.  No.  18,006;    Fraloff  v.  Railroad  Co.,  10 
Blatchf.  16,  Fed.  Cas.  No.  5,025;    The  Gold  Hunter,  1  Blatchf.  &  H.  300,  Fed. 
Cas.  No.  5,513;    Parrott  v.  Railroad  Co.,  47  Conn.  575;    Mote  v.  Railroad  Co., 
27  Iowa,  22;   Robinson  v.  Transportation  Co.,  45  Iowa,  470;   Cowley  v.  David- 
son, 13  Minn.  92  (Gil.  80);   McCormick  v.  Railroad  Co.,  49  N.  Y.  303;    Duryea 
V.  Mayor,  etc.,  of  New  York,  26  Hun,  120;   Erie  Ry.  Co.  v.  Lockwood,  28  Ohio 
St.  358;    Newell  v.  Smith,  49  Vt.  2.55;    Whitney  v.  Railway  Co.,  27  Wis.  327. 
Contra,  De  Steiger  v.  Railroad  Co.,  73  Mo.  33;    Fowler  v.  Davenport,  21  Tex. 
626.    "In  an  action  for  destroying  or  carrying  off  property,  the  plaintiff,  recov- 
ers interest  from  the  time  of  the  wrongful  act."     Sedg.  Dam.  §  316;    Fail's 
Adm'r    v.    Presley's    Adm'r,    50    Ala.    342;     Oviatt    v.    Pond,    29    Conn.    479; 
Brown  v.  Railroad  Co.,  36  Ga.  377;    Bradley  v,  Geiselman,  22  111.  494;   John- 
son V.  Railway  Co.,  77  Iowa,  666,  42  N.  W.  512;    Buffalo  &  H.  Turnpike  Co. 
V.  City  of  Buffalo,  58  N.  Y.  639;   Mairs  v.  Association,  89  N.  Y.  498;   City  of 
Allegheny  v.  Campbell,  107  Pa.  St.  530;  Texas  &  P.  R.  Co.  v.  Tankersley,  6;V 
Tex.  57.    Contra,  Green  v.  Garcia,  3  La.  Ann.  702,  where  interest  was  refused! 
because  the  demand  was  unliquidated. 

In  actions  of  replevin,  where  the  prevailing  party  recovers,  not  the  property 
Itself,  but  its  value,  interest  is  allowed  from  the  time  the  property  was  taken 
Yelton  v.  Slinkard,  85  Ind.  190;  Blackie  v.  Cooney,  8  Nev.  41;  Brizee  v, 
Maybee,  21  Wend.  144;  McDonald  v.  Scaife,  11  Pa.  St.  381;  Bigelow  v.  Doolit- 
tle,  36  Wis.  115.  Damages  for  detention  and  interest  cannot  both  be  recovered, 
McCarty  v.  Quimby,  12  Kan,  494. 

ci  Beals  v.  Guernsey,  8  Johns.  446;   Hyde  v.  Stone,  7  Wend.  354;    Bissell  v. 
Hopkins,  4  Cow.  53;    Rawloy  v.  Gibbs,  14  Johns.  385. 


§§    66-67)  PECUNIARY   .LOSSES UMLiyUIDATED    DEMANDS.  IGO 

the  right  to  interest  was  discretionary  with  the  jury  was  aban- 
doned, and  it  is  now  generally  held  that  the  plaintiff  is  entitled  to 
interest  on  the  value  of  property  converted  or  lost  to  the  owner  by 
a  trespass  as  a  matter  of  law.®^  The  interest  is  as  necessary  a  part 
of  a  complete  indemnity  in  such  cases  as  the  value  itself,  and  is  no 
more  in  the  discretion  of  the  jury  than  the  value.®^ 
Same — Destruction  by  Negligence. 

It  is  difficult  to  perceive  any  sound  distinction,  in  this  regard, 
between  cases  where  property  is  destroyed  by  a  misfeasance,  and 
where  it  is  destroyed  by  negligence,^*  Some  courts,  in  fact,  allow 
interest  in  cases  of  negligence  as  a  matter  of  law,  ®^  while  others 
leave  it  to  the  discretion  of  the  jury.^* 
Property  Losses  in  General. 

Where  a  tort  causes  a  property  loss,  but  is  not  such  as  to  deprive 
the  owner  of  title  to  any  specific  thing,  as  where  the  value  of  prop- 
erty is  diminished  by  an  injury  wrongfully  inflicted,  the  jury  may, 
in  their  discretion,  give  interest  on  the  amount  by  which  the  value 
is  diminished  from  the  time  of  the  injury.''^     Only  specific  damages, 

0  2  Wilson  V.  City  of  Troy,  135  N.  Y.  9G,  32  N.  E.  44. 

6  3  Andrews  v.  Durant,  18  N.  Y.  496;  McCormick  v.  Railroad  Co.,  49  N.  Y. 
S03-315;  Buffalo  &  H.  Turnpike  Co.  v.  City  of  Buffalo,  58  N.  Y.  (J39;  Parrott 
V.  Ice  Co.,  46  N.  Y.  361,  369. 

64  In  Parrott  v.  Ice  Co.,  46  N.  Y.  361,  369,  it  was  said:  "In  cases  of  trover, 
replevin,  and  trespass,  interest  on  the  value  of  property  unlawfully  taken  or 
converted  is  allowed  by  way  of  damages,  for  the  purpose  of  complete  indem- 
nity of  the  party  injured;  and  it  is  difficult  to  see  why,  on  the  same  principle, 
interest  on  the  value  of  property  lost  or  destroyed  by  the  wrongful  or  negli- 
gent act-  of  another  may  not  be  included  in  the  damages." 

65  Alabama  G.  S.  R.  Co.  v.  McAlpine,  75  Ala.  113;  Arthur  v.  Railway  Co., 
€1  Iowa,  648,  17  N.  W.  24;  Varco  v.  Railway  Co.,  30  Minn.  18,  13  N.  W.  921; 
Ciiapman  v.  Railway  Co.,  26  Wis.  295;    Dean  v.  Railway  Co.,  43  Wis.  305. 

66  Western  &  A.  R.  Co.  v.  McCauley,  68  Ga.  818;  Chicago  &  N.  W.  Ry.  Co. 
V.  Shultz,  55  111.  421;  Fraxcr  v.  Carpet  Co.,  141  Mass.  126,  4  N.  E.  620;  Home 
Ins.  Co.  V.  Pennsylvania  R.  Co.,  11  Hun,  182.  In  Lucas  v.  Wattles.  49  .Mich. 
380,  13  N.  W.  782,  it  was  said  to  be  discretionary  with  the  jury  to  allow  inter- 
est from  the  date  of  the  writ.  In  Houston  &  T.  C.  R.  Co.  v.  Muldrow,  51  Te.\. 
233,  the  right  to  interest  was  denied  absolutely;  and  in  Toledo,  P.  &  W.  Ry- 
Co.  V.  Johnston,  74  111.  S3,  it  was  denied  in  tlie  absence  of  a^'gravaling  circnin- 
stances. 

•  T  Thomas  v.  Weed,  14  Johns.  255;    AN'aliatli  v.   Ucdiieid,  IS  .N.  V.   157,  4(i2; 


IGG  INTEREST.  (Ch.   5 

computable  on  direct  or  indirect  evidence  of  actual  value,  can  be 
thus  increased.^®  It  is  sometimes  said  that  the  jury  cannot  award 
interest  eo  nomine  in  ordinary  cases  of  torts,  but  that  they  may  con- 
sider the  lapse  of  time  since  the  injury  in  estimating  the  damages."* 
Thus,  in  a  Pennsylvania  case,  ^°  where  interest  was  claimed  on  the 
value  of  property  negligently  destroyed,  it  was  said  that  interest, 
as  such,  could  not  be  recovered  in  actions  of  tort,  or  in  actions  of  any 
kind  where  the  damages  were  not,  in  their  nature,  capable  of  exact 
computation,  both  as  to  time  and  amount,  but  that  the  jury  might 
allow  additional  damages,  in  the  nature  of  interest,  for  lapse  of 
time.  "It  is  never  interest  as  such,  nor  as  a  matter  of  right,  but  as 
compensation  for  the  delay,  of  which  the  rate  of  interest  affords  fair 
legal  measure."  So,  in  a  Massachusetts  case,  ''^  where  the  action 
was  also  for  the  negligent  destruction  of  property,  the  court,  after 
noting  the  fact  that  interest  is  allowed  as  of  right  in  trover  and  other 
like  actions,  held  that,  in  an  action  on  the  case  for  the  negligent  de- 
struction of  property,  the  jury,  in  their  discretion,  and  as  incident 
to  determining  the  amount  of  the  original  loss,  might  consider  the 
delay  caused  by  the  defendant,  and  that  interest  on  the  original  dam- 
ages was  a  fair  measure  of  the  damages  caused  by  the  delay.    In 

Mairs  v.  Association,  89  N.  Y.  49S;  Duryee  v.  Mayor,  etc.,  of  Xew  Yorli,  90 
N.  Y.  477,  498;  Home  Ins.  Co.  v.  Pennsylvania  R.  Co..  11  Hun,  182;  Moore 
V.  Railroad  Co.,  126  N.  Y.  671,  27  N.  E.  791;  Pennsylvania  S.  V.  R.  Co.  v. 
Ziemer,  124  Pa.  St.  500,  17  Atl.  187;  Black  v.  Railroad  Co.,  45  Barb.  40;  Green- 
field Sav.  Bank  v.  Simons,  133  Mass.  415;  Milbank  v.  Dennistown,  1  Bosw. 
246.  Interest  may  be  recovered  on  money  spent  in  repairing  property  injured 
(^yllitehall  Transp.  Co.  v.  New  Jersey  Steam  Boat  Co.,  51  N.  Y.  369), 
or  in  repurchasing  property  wrongfully  taken  and  sold  (Dodson  v.  Cooper,  37 
Kan.  346,  15  Pac.  200;  Mclnroy  v.  Dyer,  47  Pa.  St.  118).  "We  hold  that,  in 
this  state,  whenever  one  party  has  a  legal  right  to  recover  of  another  a  debt 
or  damages  as  due  at  a  particular  time,  he  is  also  entitled  to  interest  as  an  in- 
cident from  the  maturity  of  the  demand  until  the  trial."  Stoudenmeier  v. 
Williamson,  29  Ala.  558,  569.  Interest  has  been  allowed  in  an  action  for  death 
of  husband  (Central  R.  Co.  v.  Sears,  66  Ga.  499);  and  for  trespass  on  land  (Dur- 
j-ee  V.  Mayor,  etc.,  of  New  York,  96  N.  Y.  477;  Lawrence  R.  Co.  v.  Cobb,  35 
Ohio  St.  94);  and  for  diverting  water  (Bare  v.  Hoffman,  79  Pa.  St.  71). 
6  8  Western  &  A.  R.  Co.  v.  Young,  81  Ga.  397,  7  S.  E.  912. 

6  9  Clement  v.  Spear,  56  Vt.  401. 

7  0  Richards  v.  Gas  Co.,  L30  Pa.  St.  37-40,  IS  Atl.  600. 
71  Frazer  v.  Carpet  Co.,  141  Mass.  126,  4  N.  E.  620. 


§    68)  PECUNIARY    LOSSES UNLIQUIDATED    DEMANDS.  167 

the  supreme  court  of  the  United  States  it  was  said:  ^^  "Interest  is 
not  allowable  as  a  matter  of  law,  except  in  cases  of  contract  or  the 
unlawful  detention  of  money.  In  cases  of  tort,  its  allowance  as 
damages  rests  in  the  discretion  of  the  jury." 

68.  CONDEMNATION  PROCEEDINGS  — Where  property 
is  taken  under  the  right  of  eminent  domain,  inter- 
est is  recoverable  on  the  amount  of  the  a"ward  from 
the  time  of  the  taking. 

The  taking  of  property  under  the  right  of  eminent  domain   is 
analogous  to  a  sale.     If  not  agreed  on,  the  damages  are  assessed 
as  of  the  time  of  the  taking,  and  interest  on  the  amount  ascertained 
is  allowed  as  compensation  for  the  detention  of  the  money  from  that 
time."     The  reason  for  the  rule  was  well  stated  in  a  Peunsylvauia 
case:^*     "If  the  plaintiff  was  entitled  to  compensation  by  reason 
of  her  property  being  taken  at  a  particular  time,  she  was  certainly 
entitled  to  interest  as  compensation  for  its  wrongful  detention.    The 
company,  as  well  as  the  plaintiff,  could  have  had  the  damages  as- 
sessed as  soon  as  they  pleased  after  locating  the  road,  and  it  was  no 
reason  for  withholding  compensation  that  its  amount  was  unknown 
or  unascertained.     As  the  company  was  the  party  to  pay,  it  ought 
to  have  had  the  amount  ascertained,  and  paid  it.     Failing  to  do  so, 
it  has  no  right  to  complain  at  having  to  meet  an  incident  of  the 
delay  in  the  shape  of  interest." 

T  2  Lincoln  v.  Claflin.  7  Wall.  132,  139. 

7  3  Hayes  v.  Railway  Co.,  G4  Iowa,  753,  19  N.  W.  245;  Hartshorn  v.  Railroad 
Co.,  52  Iowa,  613,  3  N.  W.  648;  Cohen  v.  Railroad  Co.,  34  Kan.  158.  8  Pac. 
138;  Bangor  &  P.  R.  Co.  v.  McComb,  60  Me.  290;  Reed  v.  Railroad  Co.,  105 
Mass.  303;  Kidder  v.  Oxford,  116  Mass.  165;  Chandler  v.  Aqueduct  Corp.,  125 
Mass.  544;  Sioux  City,  etc.,  R.  Co.  v.  Brown,  13  Neb.  317,  14  N.  W.  407; 
Nortli  Hudson  County  R.  Co.  v.  Booraem,  28  N.  J.  Eq.  450;  Atlantic  &  G.  W. 
Ry.  Co.  V.  Koblentz,  21  Ohio  St.  334;  Alloway  v.  City  of  Nashville,  88  Tonn. 
510,  13  S.  W.  123;  Vette  v.  U.  S.,  76  Wis.  278,  45  N.  W.  119;  Old  Colony 
R.  Co.  V.  Miller.  125  Mass.  1;   Parks  v.  City  of  Boston,  15  Pick.  198. 

74  Delaware,  L.  &  W.  R.  Co.  v.  Burson,  61  Pa.  St.  369,  380. 


168  INTEREST.  (Ch.  5 


SAME— DEFENDANT  NOT  RESPONSIBLE  FOR  DELAY. 

69.  Where  the  defendant  is  not  responsible  for  the  delay 
in  making  compensation,  he  is  not  chargeable  -with 
interest. 

Where  defendant  is  in  no  way  responsible  for  the  dehiy,  he  is 
laot  liable  for  interest.  He  may  be  responsible  for  the  delay,  either 
because  his  original  fault  necessarily  involves  a  delay,  as  where  it 
causes  an  unliquidated  loss  which  must  be  submitted  to  a  jury,  or 
because  he  simply  refuses  or  fails  to  pay  when  it  is  his  duty  to  pay. 
Where  defendant  is  not  responsible  for  the  delay,  the  loss  of  in- 
terest is  not  a  proximate  consequence  of  his  fault,  and  therefore 
cannot  be  recovered.  For  example,  if  defendant  tenders  the  amount 
due,  and  it  is  refused,  he  is  not  liable  for  interest  after  the  date  of 
the  tender.  The  loss  of  it  is  the  debtor's  own  fault.*  A  debtor  is 
not  chargeable  with  interest  on  the  debt  by  a  delay  in  its  payment, 
caused  by  his  being  summoned  as  trustee  of  the  creditor  in  a  trus- 
tee process.f  Here  the  act  of  the  law  intervened  and  caused  the 
loss. 

INTEREST  ON  OVERDUE  PAPER— CONTRACT  AND  STATUTE 

RATE. 

70.  Where  a  contract  expressly  provides  for  interest  after 
maturity,  it  -will  be  allo^sved  at  the  stipulated  rate, 
but  w^here  no  express  provision  is  made  it  is  held: 

(a)  In   some  jurisdictions,  that  interest   can  be  allowed 

only  as  damages,  and  at  the  statutory  rate. 

(b)  In   other  jurisdictions,  that  interest  accrues  by  the 

terms  of  the  contract,  and  at  the  stipulated  rate. 

The  rate  at  which  interest  shall  be  allowed,  after  maturity  of  a 
contract  which  expressly  provides  for  interest,  depends  upon  the 
construction  of  the  contract,  and  raises  a  question  upon  which  there 
is  great  conflict  of  authority.     If  the  contract  expressly  provides  for 

♦.Thompson  v.  Iliiilroad,  5S  N.  H.  524. 
t  Bickford  v.  Rich.  105  Mass.  340. 


§    70)  INTEREST    ON    OVERDUE    PAPER.  169 

interest  after  maturity,  if  default  is  then  made,  it  is  recoverable,  not 
as  damages  for  the  detention  of  the  money,  but  under  the  contract, 
as  part  of  the  debt;  and,  of  course,  the  stipulated  rate  governs. 
Upon  this  point  the  authorities  are  agreed.  But  where  the  contract 
merely  provides  for  interest,  and  is  silent  as  to  interest  after  ma- 
turity, in  many  jurisdictions  it  is  held  that  the  contract  is  broken 
by  nonpayment  at  maturity,  and  that  only  a  claim  for  damages  re- 
mains, and  that,  therefore,  interest  is  allowed  as  damages,  and  at 
the  statutory  rate.'^^  In  other  jurisdictions,  however,  it  is  held  that 
there  is  an  implied  contract  to  pay  the  agreed  rate  after  maturity, 
and  that  such  interest  is  given  under  the  contract,  and  not  as  dam- 
ages.'^    The  objection  to  the  doctrine  of  an  implied  agreement  to 

7  5  Cook  V.  Fowler,  L,  R.  7  H.  L.  27;  Goodcliap  v.  Roberts,  14  Ch.  Div.  49 
<coutra,  Keene  v.  Keeue,  3  C.  B.  [N.  S.]  144);  Gardner  v.  Barnett,  3G  Ark.  47G; 
Pettigrew  v.  Summers,  32  Ark.  571;  Woodruff,  v.  Webb.  Id.  612;  Newton  v. 
Kennerly,  31  Ark.  626;  Kohler  v.  Smitli,  2  Cal.  597;  Cummings  v.  Howard,  63 
Cal.  503;  First  Ecclesiastical  Soc.  v.  Loomis,  42  Conn.  570;  Jefferson  Co.  v. 
Lewis,  20  Fla.  9S0;  Robinson  v.  Kinney,  2  Kan.  17S-1S4;  Searle  v.  Adams. 
2  Kan.  513-515;  Rilling  v.  Thompson,  12  Bush  (Ky.)  310;  Duran  v.  Ayer,  67 
Me.  145;  Eaton  v.  Boissonnault,  Id.  540;  Brown  v.  Hardcastle,  63  Md.  484; 
Talcott  V.  Marston,  3  Minn.  339  (Gil.  23S);  Daniels  v.  Ward,  4  Minn.  168  (Gil. 
113);  Chapin  v.  Murphy,  5  Minn.  474  (Gil.  383);  Moreland  v.  Lawrence,  23 
Minu.  84;  Ashuelot  R.  Co.  v.  Elliot,  57  N.  H.  397;  Macomber  v.  Dunham,  S 
Wend.  550;  U.  S.  Bank  v.  Chapin,  9  Wend  471;  Hamilton  v.  Van  Rensselaer, 
43  N.  Y.  244;  Southern  Cent.  R.  Co.  v.  Moravia,  61  Barb.  180  (contra,  Miller 
V.  Burroughs,  4  Johns.  Ch.  436);  Genet  v.  Kissam,  53  N.  Y.  Super.  Ct.  43: 
I.,udwick  V.  Huntzinger,  5  Watts  &  S.  51;  Pearce  v.  Hennessy,  10  R.  I.  223; 
Langston  v.  Railroad  Co.,  2  S.  C.  248;  Briggs  v.  Winsmith,  10  S.  C.  133; 
Maner  v.  Wilson,  16  S.  C.  469;  Thatcher  v.  Massey,  20  S.  C.  542;  Perry  v.  Tay- 
lor, 1  Utah,  63.  The  supreme  court  of  the  United  States  has  adopted  the 
statutory  rate  as  the  true  rule.  Brewster  v.  Wakeiield,  22  How.  108;  Buru- 
hisel  V.  Firman,'  22  Wall.  170;  Holden  v.  Trust  Co.,  100  U.  S.  72.  But  it 
will  consider  itself  bound  by  the  decisions  of  the  state  courts,  as  on  a  ques- 
tion of  local  law.  Cromwell  v.  County  of  Sac,  96  U.  S.  51.  In  Indiana,  the 
rule  of  the  statutory  rate  was  first  established.  Burns  v.  Anderson,  68 
Ind.  202;  Richards  v.  McPherson,  74  Ind.  158.  These  cases  were  overruled, 
and  the  rule  of  the  contract  rate  established,  by  Shaw  v.  Rigby,  84  Ind. 
375.  This  was  an  action  on  a  note  payable  in  one  day.  and  clearly  intended 
as  a  continuing  security.  It  was  unnecessary  to  overrule  the  prior  cases 
to  arrive  at  the  result. 

7«  Phinney  v.  Baldwin,  16  111.  108;    Etuyre  v.  McDanlel,  28  111.  201;    Shaw 


170  INTERKST.  (Ch.   5 

pay  the  stipulated  rate  after  maturity  is  that  it  introduces  a  provi- 
sion into  the  contract  which  its  terms  do  not  cover,  and  thus  malces 
for  the  parties  a  contract  which  they  have  not  made  for  themselves.'^ 
Again,  it  might  be  reasonable,  and  under  some  circumstances  the 
debtor  might  be  very  willing  to  pay  the  stipulated  rate  for  a  short 
time;  but  it  does  not  follow  that  it  would  be  reasonable  or  that  the 
debtor  would  be  willing  to  pay  at  the  same  rate,  if,  for  some  unfore- 
seen cause,  payment  of  the  note  should  be  delayed  a  considerable 
length  of  time.^^ 

The  clear  intent  of  the  parties  always  governs.  The  cases  are 
unanimous  upon  this  point.  Thus,  where  a  contract  for  the  pay- 
ment of  money  stipulates  for  interest  "until  paid,"'^  "annually,"^** 
"annually  upon  the  whole  amount  unpaid,"  ®^  the  intent  is  unmis- 
takable, and  interest  is  recovered,  after  maturity,  under  the  contract, 
at  the  stipulated  rate.^^     So,  also,  where  a  note  is  payable  on  de- 

V.  Rigby,  84  Ind.  375;  Kimmel  v.  Burns,  Id.  370;  Kerr  v.  Haverstick,  94 
Ind.  178;  Hand  v.  Armstrong,  18  Iowa,  324;  Thompson  v.  Pickel,  20  Iowa, 
4t)0;  Brannon  v.  Hm'sell,  112  Mass.  63;  Union  Sav.  Inst.  v.  Boston,  129' 
Mass.  82;  Forster  v.  P'orster,  Id.  559;  Downer  v.  Whittier,  144  Mass.  448, 
11  N.  E.  585;  Warner  v.  Juif,  38  Mich.  662;  Meaders  v.  Gray,  60  Miss.  400; 
Broadway  Sav.  Bank  v.  Forbes,  79  Mo.  226;  Borders  v.  Barber,  81  Mo. 
636;  Macon  Co.  v.  Rodgers,  84  Mo.  66;  Kellogg  v.  Lavender,  15  Neb.  256. 
18  N.  W.  38;  Monnett  v.  Stnrges,  25  Ohio  St.  384;  Marietta  Iron  Works  v. 
Lottimer,  Id.  621;  Hydraulic  Co.  v.  Chatfield,  38  Ohio  St.  575;  Overton  v. 
Bolton,  9  Heisk.  762;  Pridgen  v.  Andrews,  7  Tex.  461;  Hopkins  v.  Critten- 
den, 10  Tex.  189;  Cecil  v.  Hicks,  29  Grat.  (Va.)  1;  Shipman  v.  Bailey,  20 
W.  Va.  140;  Pickens  v.  McCoy.  24  W.  Va.  344;  Spencer  v.  Maxfield,  16  Wis. 
178;    Pruyn  v.  City  of  Milwaukee,  18  Wis.  367. 

7  7  Sedg.  Dam.  §  329. 

7  8  Cook  V.  Fowler,  L.  R.  7  H.  L.  27. 

T»  Latham  v.  Dnrling,  1  Scam.  203;  Dudley  v.  Reynolds,  1  Kan.  285;  Small 
V.  Douthitt,  Id.  335;  Young  v.  Thompson,  2  Kan.  83;  Broadway  Sav.  Bank  v. 
Forbes,  79  Mo.  226;  Hager  v.  Blake,  16  Neb.  12,  19  N.  W.  780;  Taylor  v. 
Wing,  84  N.  Y.  471;  Lanahan  v.  Ward,  10  R.  I.  299;  Mobley  v.  Davega,  16 
S.  C.  73. 

80  Westfleld  v.  Westfield,  19  S.  C.  85. 

81  Miller  v.  Hall.  18  S.  C.  141;    Miller  v.  Edwards.  Id.  600. 

82  Where  the  contract  stipulates  for  interest  "till  the  principal  sum  shall  be 
payable,"  interest  at  the  stipulated  rate  cannot  be  recovered  after  maturity. 
Spaulding  v.  Lord.  19  Wis.  533. 


§    ~1)  COMPOUND    INTEREST.  171 

mand,  ^^  or  one  day  after  date,  ®*  the  intent  to  make  a  continuing 
obligation  is  obvious,  and  therefore  interest  will  be  allowed  at  the 
stipulated  rate. 

A  stipulation  for  interest  after  maturity  is,  in  effect,  an  agree- 
ment for  liquidated  damages.  Where  the  stipulated  rate  after  ma- 
turity is  higher  than  before,  recovery  has  been  denied,  on  the  ground 
that  it  was  a  penalty.*^  So,  also,  it  has  been  refused  where  the 
rate  was  grossly  excessive.^®  But  usually  a  higher  rate  may  be 
recovered.*^ 

COMPOUND  INTEREST. 

71.  Compound   interest,  or   interest   upon  interest,  can  be 
recovered  only  in  the  following-  cases: 

(a)  By  special  agreement,  made  after  the  original  inter- 

est became  due,  interest  thereon  may  be  recovered, 

(b)  By   custom,    merchants   may   make   yearly  rests   in 

their  mutual  accounts  of  principal  and  interest,  and 
interest  accrues  on  the  balance  due. 

(c)  Interest  coupons,  attached  to   bonds  or  other  securi- 

ties for  the  payment  of  money,  bear  interest. 

(d)  In  cases  of  fraud  or  -willful  -wrong,  compound  inter- 

est is  sometimes  allowed  by  way  of  punishment. 

(e)  Interest  may  be  recovered   as   damages  for  nonpay- 

ment of  interest  due  by  contract  as  a  debt,  but  not 
upon  interest  due  as  damages. 

8  3  Paine  v.  Caswell,  GS  Me.  SO. 

8*  Casteel  v.  Walker,  40  Ark.  117;  Gray  v.  Briscoe,  6  Bush,  6S7;  Sbarpe  v. 
I.ee,  14  S.  C.  341;    Fiester  v.  Fiester.  22  S.  C.  139. 

8  B  Mason  v.  Callender,  2  Minn.  350  (Gil.  302);  Talcott  v.  Marston,  3  Minn. 
339  (Gil.  238);  Kent  v.  Bown,  3  Minn.  347  (Gil.  24G);  Daniels  v.  Ward,  4  Minn. 
1G8  (Gil.  113);  Newell  v.  Houlton,  22  Minn.  19;  White  v.  litis,  24  Miuu.  43; 
Watts  V.  Watts.  11  Mo.  547. 

8c  Henry  v.  Thompson,  Minor  (Ala.)  209. 

87  Herbert  v.  Railway  Co.,  L.  R.  2  Eq.  221;  Miller  v.  Kempner,  32  Ark.  573; 
Portis  V.  Merrill,  33  Ark.  410;  Browne  v.  Stock,  2  Colo.  70;  Buckinsham  v. 
Orr,  6  Colo.  587;  Lawrence  v.  Cowles,  13  111.  577;  Smith  v.  Whltaker,  23  111. 
367;  Gould  v.  Bishop  Hill  Colony,  35  111.  324;  Dav's  v.  Rider,  53  111.  410; 
Witherow  v.  Brigys,  07  111.  90;  Downey  v.  Beach,  78  111.  53;  Funk  v.  Buck, 
91  111.  575;   Reeves  v.  Stipp,  Id.  009;    Wi-rnway  v.  Mutbershcad.  ;;  Hl:i<'kf.  401; 


172  INTEREST.  (Ch.    5 

InteML'st  computed  upon  interest  is  called  "compound  interest." 
It  is  not  favored  in  the  law,  and  it  is  a  general  rule  that  compound 
interest  cannot  be  recovered.  Even  an  agreement  made  at  the  time 
of  the  original  contract  is  of  no  avail. ^®  The  disallowance  proceeds, 
not  upon  the  ground  of  usury  (for  compound  interest  is  not  usury  if 
no  more  than  the  lawful  rate  is  charged),  ^®  but  from  motives  of  pub- 
lic policy,  because  of  its  harsh  and  oppressive  character.  "There  is 
nothing  unfair,  or,  perhaps,  illegal,  in  taking  a  covenant,  originally, 
that  if  interest  is  not  paid  at  the  end  of  the  year,  it  shall  be  con- 
verted into  principal.  But  this  court  will  not  permit  that,  as  tend- 
ing to  usury,  though  it  is  not  usury."  ^°  Chancellor  Kent  said:^^ 
"Compound  interest  cannot  be  demanded  and  taken,  except  upon  a 
special  agreement,  made  after  the  interest  has  become  due."  The 
general  rule  that  compound  interest  cannot  be  recovered  is  well  es- 
tablished,^- but  there  are  several  equally  well  established  exceptions. 

After  simple  interest  has  accrued  and  remains  unpaid,  an  agree- 
ment that  it  shall  thereafter  bear  interest  is  valid.®*  There  is  noth- 
ing harsh  or  oppressive  in  such  a  contract. 

Gower  v.  Carter,  3  Iowa,  244;    Capen  v.  Crowell,  G6  Me.  282;   Davis  v.  Hen- 
drie,  1  Mont.  499;    Fisher  v.  Otis,  3  Pin.  (Wis.)  83. 

88  State  V.  Jackson,  1  Jolins.  Ch.  13;  Ossulston  v.  Yarmouth,  2  Salli.  449; 
Paniell  v.  Sinclair,  L..  R.  G  App.  Cas.  181. 

89  Bowman  v.  Neely,  151  111.  37,  37  N.  E.  840. 
80  Chambers  v.  Goldwin,  9  Ves.  254-271. 

91  Van  Benschootea  v.  Lawscn,  6  Johns.  Ch.  313. 

92  PauUing  v.  Creagh's  Adm'r,  54  Ala.  G46;  Mason  v.  Callender,  2  Minn.  350 
<Gil.  302);  Hager  v.  Blake,  16  Neb.  12,  19  N.  \V.  780;  Mowry  v.  Bishop,  5 
Paige,  98;  Averill  Coal  &  Oil  Co.  v.  Verner,  22  Ohio  St.  372;  Genin  v.  Inger- 
soll.  11  W.  Va.  549.  Contracts  in  advance  for  compound  interest  have  been 
sustained  in  Oregon  (New  England  Mortg.  Sec.  Co.  v.  Vader,  28  Fed.  2G5);  in 
Dakota  (Hovey  v.  Edmison,  3  Dak.  449,  22  N.  W.  594),  and  in  South  Carolina 
(Bowen  v.  Barksdale,  33  S.  C.  142,  11  S.  E.  640). 

9  3  Young  V.  Hill,  67  N.  Y.  162;  Fitzhugh  v.  McPherson,  3  Gill,  408;  Gunn 
V.  Head,  21  Mo.  432;  Grimes  v.  Blake,  16  Ind.  160;  Niles  v.  Board  of  Com- 
missioners, 8  Blackf.  158;  Forman  v.  Forman,  17  How.  Prac.  255;  Van  Ben- 
schooten  v.  Lawson,  6  Johns.  Ch.  313;  Toll  v.  Hiller,  11  Paige,  228;  Barrow 
V.  Rhinelander,  1  Johns.  Ch.  550;  Doe  v.  Warren,  7  Me.  48;  Thayer  v.  Wil- 
mington Star  Min.  Co.,  105  111.  540;  Case  v.  Fish,  58  Wis.  56,  15  N.  W.  808. 
A  promise  to  pay  interest  on  arrears  of  interest  for  the  time  already  elapsed 
Is  binding.  Rose  v.  City  of  Bridgeport,  17  Conn.  243-247;  Camp  v.  Bates,  11 
Conn.  497.     Contra,  Young  v.  Hill,  67  N.  Y.  162. 


§    71)  COMPOUND    INTEREST.  173 

It  has  long  been  the  custom  of  merchants  having  mutual  accounts 
to  calculate  interest  on  the  various  items,  and  to  strike  a. balance  of 
the  principal  and  interest  yearly;  the  sum  found  due  being  carried 
forward  as  the  first  item  of  the  mutual  account  for  the  succeeding 
year.  This  custom  constitutes  a  well-recognized  exception  to  the 
rule  against  the  allowance  of  compound  interest.'*  The  right  to 
make  rests  grows  out  of  the  mutuality  of  dealings.  When  the  mu- 
tual dealings  cease,  so,  also,  does  the  right  to  make  rests."^ 

Interest  coupons  attached  to  bonds  or  other  securities  for  the  pay- 
ment of  money,  when  payable  to  bearer,  have  by  commercial  usage 
the  legal  effect  of  promissory  notes,  and  possess  the  attributes  of 
negotiable  paper.  They  are  contracts  for  the  payment  of  a  definite 
sum  of  money  on  a  day  named,  and  pass,  by  commercial  usage,  a.» 
negotiable  paper.  Interest  is  almost  universally  allowed  on  over- 
due coupons.^"     Interest  on  the  bond  is  not  compounded  indefinitely, 

8  4  Sedg.  Dam,  §  344;  Eaton  v.  Bell,  5  Barn.  &  Aid.  34;  Barclay  v.  Kennedy, 
3  Wash,  C.  C,  350,  Fed,  Cas,  No.  976;  Von  Hemert  v.  Porter,  11  Mete.  (Mass.> 
210;  Stoughton  v.  Lynch,  2  Johns.  Ch.  209;  Healy  v.  Gilman,  1  Bosw.  235;- 
Langdon  v.  Town  of  Castleton,  30  Vt.  2S5;  Davis  v.  Smith,  48  Vt.  52;  Emer- 
son V.  Atwater,  12  Mich.  314;  Carpenter  v.  Welch,  40  Vt.  251;  Schieffelin  v. 
Stewart,  1  Johns.  Ch,  620;    Backus  v.  Minor,  3  Cal,  231, 

9  5  Denniston  v,  Imbrie,  3  Wash,  C.  C,  396,  Fed.  Cas.  No.  3,802;  Von  Hemert 
T.  Porter,  11  Mete.  (Mass.)  210. 

9  0  Gelpcke  V.  City  of  Dubuque,  1  Wall.  175;  Aurora  City  v.  West,  7  Wall.  S2;. 
Clark  V.  Iowa  City,  20  Wall.  583;  Town  of  Genoa  v.  Woodruff,  92  U.  S.  502;  Amy 
V.  City  of  Dubuque,  98  U.  S.  470;  Koshkonong  v.  Burton,  104  U.  S,  668;  Paua  v. 
Bowler,  107  U.  S,  529,  2  Sup,  Ct.  704;  Rich  v.  Town  of  Seneca  Falls,  liy 
Blatchf.  558,  8  Fed,  852;  Fauntleroy  v.  Hannibal,  5  Dill.  219,  Fed.  Cas. 
No.  4,092;  Hollingsworth  v.  City  of  Detroit,  3  McLean,  472,  Fed.  Cas.  No. 
6,613;  Huey  v.  Macon  Co.,  35  Fed.  481;  Harper  v.  Ely,  70  111.  .■>S1;  Hum- 
phreys v.  Morton,  100  111.  592;  City  of  Jeffersonville  v.  Patterson,  26  lud. 
15;  Forstall  v.  Association,  34  La.  Ann.  770;  Com,  of  Virginia  v.  State  of 
Maryland,  32  Md.  501;  Welsh  v.  Railroad  Co.,  25  Minn.  314;  Connecticut 
Mut.  Life  Ins,  Co.  v.  Cleveland,  C.  &  C.  R.  Co.,  41  Barb.  9;  Burroughs  v. 
Commissioners,  65  N.  C.  234;  McLeudon  v.  Commissioners,  71  N.  C.  38; 
Dunlap  V.  Wiseman,  2  Disn.  398;  North  Pennsylvania  R.  Co.  v.  .'\dams.  54 
Pa.  St.  94;  Langston  v.  Railroad  Co.,  2  S,  C,  248;  Mayor,  etc,  of  Nashville 
V.  First  Nat,  Bank,  1  Baxt.  402;  City  of  San  Antonio  v.  Lane,  32  Tex.  405; 
Aronts  v.  Com.,  IS  Grat.  7M,  776;  (iibert  v.  Railroad  Co.,  33  Grat.  586.  59S; 
Mills  V.  Town  of  Jefferson,  20  Wis.  .54.  Couirn,  Rose  v.  City  of  Bridgopoil, 
17  Conn.  213;    Force  v.  City  of  Elizabeth,  28  N.  J.  E(i.   1(«. 


1~4  INTKREST.  (Ch.    5 

but  once  only.  These  are  the  reasons  why  they  are  excepted  from 
the  operation  of  the  general  rule."^  The  same  reasons  apply  when- 
ever separate  interest  notes  are  given.  The  allowance  of  interest  in 
this  class  of  cases  may  be  sustained  on  another  principle,  which  we 
are  about  to  explain.  Interest  secured  by  coupons  is  a  debt,  on 
which  interest  may  be  given  as  damages. 

As  punishment  for  a  fraudulent  breach  of  trust,  or  other  gross  or 
willful  wrong,  the  offender  is  often  charged  with  compound  inter- 
est.»« 

Compound  interest  is  never  allowed  by  way  of  damages.®'  But 
where,  by  the  terms  of  a  contract,  interest  is  due  at  a  fixed  day,  it  is 
a  debt;  and,  if  not  paid  when  due,  interest  thereon  may  be  recovered 
as  damages. ^""^     This  secondary  interest  does  not,  in  turn,  bear  in- 

97  Bowman  v.  Neely,  151  111.  37,  37  N.  E.  S40. 

8  8  Ackerman  v.  Eiiiott,  4  Barb.  626.  Where  a  trustee  uses  trust  funds  for 
his  own  benefit,  he  is  liable  for  compound  interest.  Merrifield  v.  Longmire, 
G6  Cal.  ISO,  4  Pac.  1176;  State  v.  Ho  worth,  48  Conn.  207;  Jennison  v.  Hap- 
good,  10  Pick.  77;    Schieffeliu  v.  Stewart,  1  Johns.  Ch.  620. 

9  9  Lewis  V.  Small,  75  Me.  323. 

100  Calhoun  v.  Marshall,  61  Ga.  275;  Tillman  v.  Morton,  65  Ga.  386; 
Mann  v.  Cross,  9  Iowa,  327;  Hershey  v.  Hershey,  18  Iowa,  24;  Preston  v. 
Walker,  26  Iowa,  205;  Burrows  v.  Stryker,  47  Iowa,  477;  Talliaferro's  Exrs 
V.  King's  Adm'r,  9  Dana,  331;  Peirce  v.  Rowe,  1  N.  H.  179;  Bledsoe  v. 
Nixon,  69  N.  C.  89;  Ankelel  v.  Converse,  17  Ohio  St.  11;  Cramer  v.  Lepper, 
26  Ohio  St.  59;  Wheaton  v.  Pike,  9  R.  I.  132;  Lanahan  v.  Ward,  10  R.  I. 
299;  Henderson  v.  Laurens,  2  Desaus.  Eq.  170;  Singleton  v.  Lewis,  2  Hill 
^S.  C.)  408;  Gibbs  v.  Chisolm,  2  Nott  &  McC.  38;  Doig  v.  Barkley,  3  Rich. 
Law,  125;  O'Neall  v.  Bookman,  9  Rich.  Law,  80;  House  v.  Female  Col- 
lege, 7  Heisk.  128;  Lewis  v.  Paschal's  Adm'r,  37  Tex.  315;  Catlin  v.  Ly- 
man, 16  Vt.  44  (contra,  Braughton  v.  Mitchell,  64  Ala.  210);  Montgomery  v. 
Tutt,  11  Cal.  307;  Doe  v.  Vallejo,  29  Cal.  385;  Denver  Brick  &  Manuf'g  Co. 
V.  McAllister,  6  Colo.  261;  Rose  v.  City  of  Bridgeport,  17  Conn.  243;  Leonard 
V.  Villars.  23  111.  377;  Niles  v.  Board,  8  Blackf.  158;  Doe  v.  Warren,  7 
Me.  48;  Banks  v.  McClellan,  24  Md.  62  (contra,  Fitzhugh  v.  McPherson,  3 
Gill,  408);  Hastings  v.  Wiswall,  8  Mass.  455;  Henry  v.  Flagg,  13  Mete. 
(Mass.)  64;  Van  Husan  v.  Kanouse,  13  Mich.  303;  Dyar  v.  Slingerland,  24 
Minn.  267;  Corrigan  v.  Delaware  Falls  Co.,  5  N.  J.  Eq.  232,  245;  Mowry  v. 
Bishop,  5  Paige,  98;  Young  v.  Hill,  67  N.  Y.  162  (contra,  Howard  v.  Farley, 
3  Rob.  [N.  Y.]  599);  Sparks  v.  Garrigues,  1  Bin.  (Pa.)  152;  Stokely  v.  Thomp- 
son, 34  Pa.  St.  210;  Pindall  v.  Bank  of  Marietta,  10  Leigh,  481;  Genin  v. 
Ingersoll,  11  W.  Va.  549.     Interest  may  be  recovered  on   the  arrears  of  an 


.§    71)  COMPOUND    INTEREST.  175 

terest.  For  example,  to  ascertain  the  amount  due  on  a  matured  ob- 
ligation stipulating  for  the  payment  of  interest  at  stated  times, 
simple  interest  should  be  calculated  from  maturity  on  the  principal 
sum  plus  the  unpaid  interest  contracted  for.  Interest  cannot  be 
recovered  on  the  amount  due  as  damages  for  the  nonpayment  of  the 
contractual  interest.^"^  So,  in  an  action  on  a  note  stipulating  for 
interest  after  maturity,  and  providing  that,  if  the  interest  were  not 
paid  annually,  it  should  become  principal,  and  bear  interest  at  the 
same  rate,  it  was  held  ^^'^  that  the  unpaid  interest  due  at  maturity 
of  the  note,  and  each  successive  annual  installment  of  interest  from 
that  date,  bore  interest, — not,  however,  so  as  to  compound  the  in- 
terest on  the  amounts  in  default.  Simple  interest  only  was  allowed 
on  the  arrears  of  contractual  interest,  the  court  holding  that  only 
the  interest  on  the  principal  became  principal,  and  bore  interest. 

annuity.  Elliott  v.  Beeson,  1  Har.  (Del.)  106;  Houston  v.  Jamison's  Adm'r, 
4  Har.  (Del.)  330.  Contra,  Isenhart  v.  Brown,  2  Edw.  341;  Adams  v. 
Adams,  10  Leigh,  527.  Even  though  it  is  in  the  form  of  interest  on  a  fixed 
sum.     Knettle  v.  Grouse,  6  Watts,  123;    Addams  v.  Heffernan,  9  Watts,  529. 

101  Wheaton  v.  Pike,  9  R.  I.  132;  Bledsoe  v.  Nixon,  69  N.  0.  89. 

10  3  Vaughan  v.  Kennan.  38  Ark,  114. 


176  VALUE.  (Ch.  6 

CHAPTER  VI. 

VALUE. 

72.  Definition. 

73.  How  Estimated. 
74r-7o.    Market  Value, 

76.    Value   Peculiar   to  Owner. 
77-78.    Pretium    Affectionis. 

79.  Time  and  Place  of  Assessment 

80.  Highest  Intermediate  Value. 
81-82.    Medium  of  Paymeflt— Legal  Tenders. 

DEFINITION. 

72.  Value  is  the  estimated  or  appraised  worth  of  a  thing, 

calculated  in  money, — its  pecuniary  equivalent. 

In  speaking  of  the  principles  upon  which  compensation  is  award- 
ed, we  have  had  frequent  occasion  to  refer  to  the  "value"  of  the 
thing  in  question  as  furnishing  the  measure  of  recovery.  In  this 
chapter  it  is  proposed  to  discuss  the  methods  of  ascertaining  such 
value,  and  the  elements  that  enter  into  the  calculation. 

The  value  of  a  thing  is  simply  its  pecuniary  equivalent.  Compen- 
satory damages  are  intended  as  a  pecuniary  equivalent  for  the  thing 
lost  by  defendant's  wrong,  and  it  follows  that  the  assessment  of 
compensatory  damages,  in  almost  every  case,  resolves  itself  primarily 
into  an  inquiry  as  to  value.  Where  property  is  lost,  converted,  or 
destroyed,  the  owner  is  compensated  when  he  receives  its  full  value 
in  money.  "WTiere  a  contract  is  broken,  the  value  of  the  thing  con- 
tracted for  is  the  measure  of  compensation.  Where  a  tort  results 
in  personal  injury,  the  value  of  the  time  and  labor  lost,  the  medical 
attendance,  etc.,  is  an  element,  though  not  the  onlj^  one,  of  compen- 
sation. 

HOW  ESTIMATED. 

73.  The  value  of  property  must  be  estimated  -with  refer- 

ence to  the  most  valuable  present  or  future  use  for 
which  it  is  adapted. 


§   73)  HOW    ESTIMATED.  177 

It  is  obvious  that  tlie  value  of  a  thing  does  not  depend  upon  the 
use  to  which  it  is  put  by  tlie  owner.  Property  may  be  stored  in 
safe-deposit  vaults  and  not  used  at  all;  but  it  is  none  the  less  val- 
uable. It  is  the  most  advantageous  possible  use  to  which  property 
may  be  put,  and  not  the  actual  use  to  which  it  is  put,  that  deter- 
mines its  value.  Thus,  it  was  held,  in  an  action  for  use  and  occupa- 
tion of  a  building  adapted  for  use  as  a  machine  shop,  that  its  rental 
value  as  a  machine  shop  could  be  recovered,  though  defendant  had 
used  it  only  for  storage.^  And  in  estimating  the  value  of  a  horse  it 
was  said:  "Perhaps  he  would  not  have  been  worth  anything  as  a 
fast  trotter,  or  as  a  gentleman's  carriage  horse,  because  not  adapted 
to  the  work;  but  that  would  not  depreciate  his  value  as  a  cart  horse, 
for  which  purpose  he  was  to  be  used."  ^  So,  also,  in  estimating  the 
value  of  a  cow,  her  exceptional  value  for  breeding  purposes,  because 
of  her  thoroughbred  blood,  must  be  considered,  and  it  would  be  error 
to  limit  the  inquiry  to  her  value  for  beef  or  milking  purposes.' 

Any  possible  future  use  must  be  considered  in  fixing  the  present 
value.*  The  possibility  must  not  be  merely  speculative  or  conjec- 
tural, but  must  be  reasonably  certain,  and  such  as  to  affect  the  sell- 
ing price  in  the  market.^  "A  man  may  have  property  well  situated 
for  a  certain  purpose, — such  as  a  mill  site,  or  as  a  farm,  or  as  a 
residence  or  store,  or  as  a  mine, — and  he  may  refuse  to  use  it  for 
any  one  of  those  purposes  to  which  it  is  best  suited.  Still  he  may 
sell  it  in  open  market  to  a  purchaser  whose  opinion  of  its  present 
market  value  is  based  upon  the  future  use  to  which  it  may  be  put. 
So  he  may  claim,  in  any  proceeding  to  condemn  that  land,  the  mar- 
ket value  thereof,  as  that  value  is  fixed  by  the  public  for  those  pur- 
poses. The  difference  between  such  a  valuation  and  speculation 
seems  clear.  Land  never  used  by  its  owner  for  any  purpose  is 
sought  to  be  condemned.  The  fertility  of  the  soil  is  one  of  the  char- 
acteristics or  properties  of  that  land.     It  has  never  produced  any 

1  Horton  v.  Coolcy,  135  Mass.  5S'J. 

2  Farrel  v.  Colwell,  30  N.  J.  Law.  123,  127. 

3  Central  Branch  U.  P.  R.  Co.  v.  N'cbols,  21  Kan.  212. 

*  Reed  v.  Ohio  &  M.  Ky.  Co.,  12G  111.  48,  17  N.  E.  807;  Ellington  v.  Boniictt. 
59  Ga.  280;  Shenango  &  A.  K.  Co.  v.  Braliam,  79  Pa.  St.  447;  iMoure  v.  Uall, 
3  Q.  B.  Div.  178;    Holland  v.  Worley,  20  Ch.  Div.  578. 

8  Sedj;.  Dam.  §  253. 

LAW  DAM.  — 12  • 


178  VALUE.  (Ch.  f> 

returns;  but  there  is  no  attempt  to  prove  future  productions.  They 
are  specuhitivc.  The  fertility  of  the  soil  is  a  fact, — a  fact  which  in 
some  cases  may  add  great  value  to  the  property,  and  may  be  one 
of  the  constituents  of  the  market  price,"  ®  It  was  accordingly  held  ^ 
that,  in  proceedings  for  the  condemnation  of  a  mining  claim  for  rail- 
road purposes,  the  owner  may  prove  the  value  of  the  land  for  town- 
lot  purposes,  whether  built  upon  or  not,  in  addition  to  proving  its 
value  as  a  prospect;  but  his  recovery  is  confined  to  its  value  foi 
one  or  the  other  purpose.  Stated  generally,  the  price  to  be  paid 
for  land  taken  in  condemnation  proceedings  is  its  value  for  any  pur- 
pose for  which  it  is  shown  by  the  evidence  to  be  available,  and  not 
simply  its  value  as  land  as  it  is  at  the  time.* 

MARKET  VALUE. 

74.  The  market  value  is  the  price  or  rate  at  which  a  thing 

is  sold. 

75.  The  market  value  of  an  article  is  merely  evidence  of 

its  real  value,  and  is  not  conclusive. 

The  market  value  is  the  price  or  rate  at  which  a  thing  is  sold.® 
To  make  a  market,  there  must  be  buying  and  selling.  "If  the  owner 
of  an  article  holds  it  at  a  price  which  nobody  will  give  for  it,  can 
that  be  said  to  be  its  market  value?  Men  sometimes  put  fantastical 
prices  upon  their  property.  For  reasons  personal  and  peculiar,  they 
may  rate  it  much  above  what  any  one  would  give  for  it.  Is  that 
its  value?  Further,  the  holders  of  an  article,  as  flour,  for  instance, 
under  a  false  rumor,  which,  if  true,  would  augment  its  value,  may 
suspend  their  sales,  or  put  a  price  upon  it,  not  according  to  its  value 
in  the  actual  state  of  the  market,  or  the  actual  circumstances  which 
affect  the  market,  but  according  to  what,  in  their  opinion,  will  be 
its  market  price  or  value  provided  the  rumor  shall  prove  to  be  true. 
In  such  case,  it  is  clear  that  the  asking  price  is  not  the  worth  of  the 

6  Montana  R.  Co.  v.  Warren,  6  Mont.  275,  12  Pac.  &41. 

7  Id. 

8  Reed  v.  Ohio  &  M.  Ry.  Co.,  126  111.  48,  17  N.  E.  807;  Mississippi  &  R.  R. 
Boom  Co.  V.  Patterson,  08  U.  S.  403,  407. 

9  Blydenburgh  v.  Welsh,  Baldw.  331,  340,  Fed.  Cas.  No.  1,583. 


§§    74-75)  MARKET    VALUE.  179 

thing  on  the  given  day,  but  what  it  is  supposed  it  will  be  worth 
at  a  future  day,  if  the  contingency  shall  happen  which  is  to  give  it 
this  additional  value.  To  take  such  a  price  as  a  rule  of  damages  is 
to  make  a  defendant  pay  what  never,  in  truth,  was  the  value  of  the 
article,  and  to  give  the  plaintiff  a  profit,  by  a  breach  of  the  contract, 
which  he  never  could  have  made  by  its  performance."  ^°  The  mar- 
ket value  is  the  fair  cash  value  if  sold  in  the  market  for  cash,  and 
not  on  time."  A  single  sale  will  not  establish  a  market  value.^* 
Value  in  Nearest  Market. 

Where  there  is  no  market  for  the  article  at  the  place  where  its 
value  is  to  be  estimated,  the  value  at  the  nearest  market  is  taken 
as  a  basis,  and  an  allowance  is  made  for  the  cost  of  transportation, 
the  object  being  to  ascertain  the  real  value  at  the  place  of  compen- 
sation.^^ 

Value  of  Property  in  Course  of  Manufacture. 

The  value  of  articles  partially  manufactured  is  the  value  they 
would  have  when  completed,  less  the  cost  of  completing  them.^* 

10  Id. 

11  Brown  v.  Calumet  R.  Ry.  Co.,  125  111.  600,  IS  N.  E.  2S3. 

12  Graham  v.  Maitland,  1  Sweeny  (N.  Y.)  149. 

13  Bullard  v.  Stone.  G7  Cal.  477,  8  Pac.  17;  Sellar  v.  Clelland,  2  Colo.  532; 
Furlong  v.  PoUeys,  30  Me.  491;  Berry  v.  Dwinel,  44  Me.  255;  Rice  v.  Manley, 
GG  N.  Y.  82;  Wemple  v.  Stewart,  22  Barb.  154;  Grand  Tower  Min.,  Manuf'g 
&  Transp.  Co.  v.  Phillips,  23  Wall.  471;  O'Hanlan  v.  Railway  Co.,  6  Best  & 
S.  484,  34  Law  J.  (N;  S.)  Q.  B.  154.  If  the  nearest  market  is  resorted  to  by  per- 
sons from  the  place  where  the  value  is  to  be  estimated  as  a  place  of  purchase, 
the  transportation  charges  must  be  added.  See  cases  cited  supra.  If  such  mar- 
ket is  a  point  of  sale,— that  is,  if  the  goods  are  worth  more  there  than  at  the  place 
where  their  value  is  to  be  estimated,— the  cost  of  transportation  must  be  de- 
ducted. Harris  v.  Panama  R.  Co.,  58  N.  Y.  6G0;  Cockburn  v.  Ashland  Lum- 
ber Co.,  54  Wis.  G19,  12  N.  W.  49.  See.  also.  Glaspy  v.  Cabot,  135  Mass.  435. 
Cf.  .lohnson  v.  Allen.  78  Ala.  387;  McDonald  v.  Uuaka  Timber  Co.,  88  Teun, 
38,  12  S.  W.  420;  Hendrie  v.  Xeelon,  12  Out.  App.  41;  Saunders  v.  Clark,  100 
Mass.  331.  It  is  presumed,  prima  facie,  that  goods  are  worth  as  much  at  the 
point  of  destination  as  at  the  place  of  shipment.  Rome  R.  Co.  v.  Sloan,  39 
Ga.  G3G;  South  &  N.  A.  R.  Co.  v.  Wood,  72  Ala.  451;  Echols  v.  Louisville  &  N. 
R.  Co.,  90  Ala.  3GG,  7  South.  G55;    Richmond  v.  Brousou,  5  Deuio,  55. 

14  Emmons   v.    Westlield    Bank.   97   Mass.   230. 


ISO  VALUE.  (Ch.  & 

Value  of  Property  for  Which  There  is  No  Market  Value. 

A  market  value,  as  signifying  a  price  established  by  sales  in  the- 
ordinary  course  of  business,  is  not  necessary  to  a  judicial  valuation. 
Property  is  often  subject  to  such  valuation  for  which  no  proof  of 
value  in  tlio  market  could  be  given,  because  it  is  not  bought  and  sold 
in  the  ordinary  course  of  trade,  and  is  not  known  in  the  market.  Itt 
such  cases  the  real  value  is  to  be  ascertained  from  such  elements- 
of  value  as  are  attainable.^'*  "The  market  price,  in  the  ordinary 
sense,  is  generally,  but  not  always,  the  test  of  value.  For  such  a 
tort  as  a  conversion  of  goods,  a  plaintiff  may  be  entitled  to  large 
damages,  though'  unable  to  sell  the  goods  at  any  price.  He  may 
be  greatly  injured  by  the  loss  of  goods  which  he  cannot  sell,  but 
which  would  be  productive  of  great  benefit,  and  therefore  would  be 
of  great  value,  without  a  sale."  ^®  The  promissory  note  of  an  in- 
dividual may  have  no  market  value.  But  proof  of  the  solvency  of 
the  maker,  or  that  the  note  is  secured  by  collateral,  in  whole  or  in 
part,  furnishes  a  basis  for  a  fair  valuation. 

Market  Price  is  Merely  Evidence  of  Value. 

The  market  price  of  an  article  is  only  a  means  of  arriving  at  its- 
real  value.^''  It  is  not  itself  the  value  of  the  article,  but  it  is  evi- 
dence of  the  value.  The  law  adopts  it  as  a  natural  inference  of 
fact,  but  not  as  a  conclusive  legal  presumption.^*  Where  an  article 
is  destroyed  which  can  be  readily  replaced  by  purchase  in  the  mar- 
ket, so  as  to  put  the  owner  in  as  good  a  position  as  he  was  before, 
the  market  price  and  real  value  will  be  the  same.  In  such  cases, 
the  market  value  is  said  to  be  the  measure  of  damages,  but  per- 

16  Murray  v.  Stanton,  UU  Mass.  345.  "If  at  any  particular  time  tliere  be  no 
market  demand  for  an  article,  it  is  not  on  that  account  of  no  value."  Trout  v. 
Kennedy,  47  Pa.  St.  387,  393.  In  Erie  &  P.  R.  Co.  v.  Douthet,  88  Pa.  St.  243,. 
the  value  of  a  pass  for  life  for  an  entire  family  over  a  railroad  was  estimated. 
But  see  Brown  v.  St.  Paul,  M.  &  M.  R.  Co.,  30  Minn.  236,  31  N.  W.  941. 

10  Hovey  v.  Grant.  52  N.  H.  509,  581. 

17  Sedg.  Dam.  §  243.  "What  a  thing  will  bring  in  the  market  at  a  given 
time  is,  perhaps,  the  measure  of  its  value  then,  but  not  the  only  one."  Trout 
V.  Kennedy,  47  Pa.  St.  387. 

18  Kountz  V.  Kirkpatrick,  72  Pa.  St.  370.  Defendant  cannot  show  that  the 
ai-ticle  was  intrinsically  of  no  value,  and  that  the  market  value  was  due  to  iv 
misapprehension  on  the  part  of  the  public.     Smith  v.  Griffith,  3  Hill,  333. 


^§    74-75)  MARKET   VALUE.  181 

haps  it  would  be  more  accurate  to  say  that  the  value  of  the  article 
was  the  measure. 

jS'tocA's,  Bonds,  and  Other  Securities. 

The  value  of  securities  for  the  payment  of  money  is,  prima  facie, 
the  amount  secured.^ ^  Where  the  securities  have  a  market  value, 
as  in  the  case  of  stocks  and  bonds,  that  value  ordinarily  controls.^" 
Where  there  is  no  market  value,  the  intrinsic  value  may  be  shown.'^^ 
The  prima  facie  value  of  bills  and  notes  may  be  reduced  by  showing 
invalidity,  payment,  or  insolvency  of  the  maker;  ^^  but  the  maker 
cannot  show  his  own  insolvency.-^ 

19  BILLS  AND  NOTES.  Evans  v.  Kymer,  1  Barn.  &  Adol.  528;  St.  John 
V.  O'Connel,  7  Port.  (Ala.)  4GG;  Ray  v.  Light,  34  Ark.  421;  American  Exp. 
Co.  V.  Parsons,  44  111.  312;  Hersey  v.  Walsh,  3S  Minn.  521,  38  N.  W.  G13; 
.Menkens  v,  Menkens,  23  Mo.  252;  Bredow  v.  Mutual  Sav.  Inst.,  28  Mo.  181; 
Decker  v.  Mathews,  12  N,  Y.  313;  Metropolitan  El.  R.  Co.  v.  Kneelaud,  12u 
N.  y.  134,  24  N.  E.  381;  Ramsey  v.  Hurley,  72  Tex.  194,  12  S.  W.  56;  Rob- 
bins  V.  Packard,  31  Vt.  570.  See,  also,  Barron  v.  Mullin,  21  Minn.  374. 
The  value  of  a  savings  bank  book  is,  prima  facie,  the  amount  of  deposits. 
Wegner  v.  Second  Ward  Sav.  Bank,  7G  Wis.  242,  44  N.  W.  109G.  Of  an  ac- 
<;ount,  its  face  value.     Sadler  v.  Bean,  37  Iowa.  439. 

20  BONDS.  Haj-es  v.  Massachusetts  Mut.  Life  Ins.  Co.,  125  111,  G2G,  18 
N.  E.  322;  First  Nat.  Bank  of  Monmouth  v.  Strang,  28  111.  App.  325;  Cal- 
lanan  v.  Brown,  31  Iowa,  333;  Grifhth  v.  Burden,  35  Iowa,  138;  Roberts  v. 
Berdell,  61  Barb.  37;  Wintermute  v.  Cooke,  73  N.  Y.  107;  Simpkius  v.  Low, 
54  N.  Y.  179. 

STOCKS.  Deck's  Adm.'r  v.  Feld,  38  Mo.  App.  674;  Ormsby  v.  Mining  Co., 
5G  N.  Y.  623;  Connor  v.  Hillier  11  Rich.  193.  And  see  Delany's  Adm'rs  v. 
Hill,  1  Pittsb.  R.  28. 

21  Itedding  v.  Godwin,  44  Minn.  3.j5,  46  N.  W.  563;  Dock's  Adm'r  v.  Feld, 
38  Mo.  App.  674;  Huse  &  Loomis  Ice  &  Transp.  Co.  v.  Heinze,  102  Mo.  245, 
14  S.  W.   756. 

2  2  Zoigler  v.  Wells,  Fargo  &  Co.,  23  Cal.  179;  American  Exp.  Co.  v.  I':ir- 
sons.  44  111.  312;  Latham  v.  Brown,  16  Iowa,  118;  O'Donogliue  v.  Carhy. 
22  Mo.  393;  Potter  v.  Merchants'  Bank,  28  N.  Y.  641;  Cothran  v.  Hanover 
Nat.  Bank,  40  N.  Y.  Super.  Ct.  401.  An  immaterial  alteration  will  not  re- 
duce the  damages.  It  must  be  such  as  will  vitiate  the  instrument.  Booth  v. 
Powers,  56  N.  Y.  22.     See,  also.  Rose  v.  Lewis,  10  Mich.  4.S3. 

23  Stephenson  v.  Thayer,  63  Me.  143;  Outhouse  v.  Outhou.«e,  13  Iluii.  l.'JO; 
Robbins  v.  Packard,  31  Vt.  570;  Kalckhoff  v.  Zoehrlaut,  4.3  Wis.  ;{7:5;  Texas 
W.  Ry.  Co.  V.  Gentry,  69  Tex.  625,  8  S.  W.  98;  Memphis  &  L.  R.  U.  Co.  v. 
Walker,  2  Head,  467. 


182  VALUE.  (Ch.  G 

Good  Will  oj  Established  Business. 

The  value  of  the  good  will  of  an  established  business  may  be  es- 
timated on  a  basis  of  past  profits.-*  A  depression  may  be  shown  to 
reduce  the  estimate.'^''  In  an  English  case,  ^^  it  was  said  that  the 
good  will  of  premises  should  be  valued  at  such  a  sum  as  persons  who 
are  in  the  habit  of  estimating  such  things  would  fix  as  the  value  of 
the  good  will  of  the  premises  under  ordinary  circumstances.  The 
improved  value  of  neighboring  property  may  be  considered. 

VALUE  PECULIAR  TO  OWNER. 

76.  Where  property  has  a  peculiar  value   to  the   o-wner, 
such  as  it  has  to  no  other  person,  or  -where  it  can- 
not be   exactly   replaced    by   other    goods   of   like 
,     kind,  the   actual   value   to  the   o-wrner,  and  not  the 
market  value,  is  the  measure  of  compensation. 

This  rule  has  frequent  application  where  compensation  is  claimed 
for  the  loss  of  household  goods  and  furniture,  wearing  apparel,  and 
the  like.  In  such  a  case  it  was  said:  "He  could  hardly  have  sup- 
plied himself  in  the  market  with  goods  in  the  same  condition  and 
so  exactly  suited  to  his  purposes  as  were  those  of  which  he  had  been 
deprived.  As  compensation  for  tlie  actual  loss  is  the  fundamental 
principle  upon  which  this  measure  of  damages  rests,  it  would  seem 
that  the  value  of  such  goods  to  their  owner  would  form  the  proper 
rule  on  which  he  should  recover;  not  any  fanciful  price  that  he 
might  for  special  reasons  place  upon  them,  nor,  on  the  other  hand, 
the  amount  for  which  he  could  sell  them  to  others,  but  the  actual 
loss  in  money  he  would  sustain  by  being  deprived  of  articles  so 
specially  adapted  to  the  use  of  himself  and  his  family."  ^^  In  a 
similar  case  it  was  said:  "The  clothing  was  made  to  fit  plaintiff, 
and  had  been  partly  worn.  It  would  sell  for  but  little,  if  put  into 
the  market  to  be  sold  for  secondhand  clothing;  and  it  would  be  a 
wholly  inadequate  and  unjust  rule  of  compensation  to  give  plaintiff, 

24  Ante,  74. 

2  5  Chapman  v.  Ivirby,  49  111.  211,  219. 

2  8  Llewellyn  v.  Rutherford,  L.  K.  10  C.  P.  456. 

2T  International  &  G.  N.  Ry.  Co.  v.  Nicholson,  Gl  Tex.  550,  553. 


§§    77-78)  PRETIUM    AFFECTIONIS.  183 

in  such  a  case,  the  value  of  the  clothing  thus  ascertained.  The  rule 
must  be  the  value  of  the  clothing  for  use  by  the  plaintiff.  No  other 
rule  would  give  him  a  compensation  for  his  damages.  This  rule 
must  be  adopted  because  such  clothing  cannot  be  said  to  have  a  mar- 
ket price,  and  it  would  not  sell  for  what  it  was  really  worth."  ^'  In 
such  cases,  the  value  is  to  be  properly  fixed  by  considerations  of 
cost  and  actual  worth  at  the  time  of  the  loss,  without  reference  to 
what  they  could  be  sold  for  in  any  particular  market.^*  The  rule 
applies  where  the  property  destroyed  cannot  be  replaced.  Thus  the 
measure  of  damages  for  the  destruction  of  a  family  portrait  is  ''the 
actual  value  to  him  who  owns  it,  taking  into  account  its  cost,  and 
the  practicability  and  expense  of  replacing  it,  and  such  other  con- 
siderations as  in  the  particular  case  affect  its  value  to  the  owner."  ^^ 
Family  portraits  or  heirlooms  have  a  peculiar  value  to  the  owner, 
and  may  also  be  difficult  or  impossible  to  replace.  The  recovery  of 
their  real  value  to  the  owner  may  be  sustained  under  either  branch 
of  the  rule.  Such  articles  have  no  market  price,  and  their  value 
must  be  determined  on  other  considerations,^^ 

PRETIUM  AFFECTIONIS. 

77.  A  pretium   affectionis   is   an  imaginary  value   placed 

upon  a  thing  by  the  fancy  of  its  o\i7ner,  growing 
out  of  his  attachment  for  the  specific  article  and  its 
associations. 

78.  A   pretium   affectionis   is   never   taken   as    a   basis  of 

compensation,  for  it  is  not  the  real  value. 

The  imaginary  or  sentimental  value  sometimes  placed  upon  prop- 
erty by  its  owner,  growing  out  of  his  attachment  for  that  specific 

2  8  Fairfax  v.  New  York  Cent.  &  H.  R.  R.  Co.,  73  N.  Y,  1G7,  On  loss  of 
baggage,  plaiutifC  is  entitled  to  recover  its  value  for  use  to  him,  and  not 
market  value,  Simpson  v.  New  York,  N,  H,  &  H,  R.  Co.  (Sup.)  38  N,  Y.  Supp, 
341, 

2  3  Denver,  S.  P.  &  P,  R.  Co,  v.  Frame,  G  Colo.  382.  385, 

30  Green  v,  Boston  &  L.  R,  Co.,  128  Mass,  221.  22G.  See  Houston  &  T.  C 
R.  Co.  v.  Burke,  55  Tex.  323. 

•'"  The  actual  value  to  the  owner  does  not  iiic;m  (lie  prelluiu  affect ioiiis. 
Sedg.  Dam,  ?  251. 


184  VALUE.  (Ch.  6 

property,  the  "pro+ium  affectionis,"  as  it  is  called,  cannot  be  recov- 
ered as  compensation  for  the  destruction  or  conversion  of  such  prop- 
erty.^^     In  speaking  of  the  action  of  trover.  Prof.  Parsons  said:^^ 
*'T\Tiether  in  this  or  any  action,  instead  of  the  actual  value,  that 
which  the  plaintilT  puts  upon  the  property,  as  a  gift,  perhaps  of  a 
dear  friend,  or  for  other  purely  personal  reasons,  can  be  recovered, 
is  not,  perhaps,  certain.     We  think  it  quite  clear,  however,  that  this 
pretiura  affectionis  cannot  be  recovered,  unless  in  cases  where  the 
conversion  or  appropriation  by  the  defendant  was  actually  tortious; 
and  in  that  case  we  should  be  disposed  to  hold  that  the  defendant 
should  be  made  to  pay  what  he  would  have  been  obliged  to  give  if 
ho  had  bought  the  article,  or,  at  least,  that  the  damages  might  be 
considerably  enlarged  in  such  a  case,  on  the  principle  of  exemplarv 
damages."    Mr.  Field  thinks  that  the  jury  should  determine,  under 
all  the  circumstances  of  the  case,  the  amount  of  damages.^*     In  Suy- 
dam  V.  Jenkins  ^'^  it  was  said,  obiter:     "In  most  cases  the  market 
value  of  the  property  is  the  best  criterion  of  its  value  to  the  owner, 
but  in  some  its  value  to  the  owner  may  greatly  exceed  the  sum  that 
any  purchaser  would  be  willing  to  pay.     The  value  to  the  owner 
may  be  enhanced  by  personal  or  family  considerations,  as  in  the  case 
of  family  pictures,  plate,  etc.;   and  we  do  not  doubt  that  the  'pre- 
tium  affectionis,'  instead  of  the  market  price,  ought  then  to  be  con- 
sidered by  the  jury  or  court  in  estimating  the  value."     When  an- 
alyzed, the  damage  caused  by  the  loss  or  destruction  of  property  of 
this  nature,  consists  of  two  elements:     First,  the  loss  of  the  real 
property  A^alue;    second,  the  grief  or  mental  suffering  at  the  loss 
of  the  cherished  article.     From  this  we  gather  what  we  apprehend 
to  be  the  true  rule,  which  is  that,  where  property  is  of  such  a  nature 
that  its  loss  or  destruction,  under  the  circumstances,  naturally  and 
proximately  causes  mental  suffering,  compensation  for  such  mental 

32  Moseley  v.  Anderson,  40  Miss.  49.  The  satisfaction  and  pleasure  which 
the  possession  of  an  article  gives,  like  the  satisfaction  which  comes  from 
liaviug  a  contract  respected  and  performed,  is  of  a  nature  that  the  law  does 
cot  recognize  as  a  subject  for  compensation.     Sedg.  Dam.  §  251. 

3  3  3  Pars.  Cont.  (Sth  Ed.)  209 

34  Field,  Dam.  §  817.  See,  also,  Whitfield  v.  V\'hittield,  40  Miss.  3".2;  Id., 
i4  Miss.  254;    Bickell  v.  Colton,  41  Miss.  308. 

3  5  3  Sandf.  G14,  021. 


§    79)  TIME    AND    PLACE    OF    ASSESSMENT.  185 

suffering  may  be  recovered,  in  a  proper  action,  in  addition  to  the 
victual  value  of  the  property. 


TIME  AND  PLACE  OF  ASSESSMENT. 

79.  As  a  general  rule,  value  should  be  estimated  as  of  the 
time  and  at  the  place  where  the  o"vtrner  was  de- 
prived of  the  thing  valued. 

As  a  general  rule,  value  is  assessed  as  of  the  time  and  at  the 
place  where  the  owner  is  deprived  of  it.  This  is  on  the  theory  that 
such  value  is  beneficially  equal  to  the  property  itself.^^  Interest  is 
usually  added  as  compensation  for  delay  in  payment.  The  rule  is  of 
.general  application,  wherever  the  question  of  value  is  involved. 
Thus,  the  measure  of  damages,  in  actions  for  conversion,  is  ordinarily 
the  value  of  the  property  converted  at  the  time  and  place  of  conver- 
.dion.^^     In  condemnation  proceedings,  it  is  the  value  at  the  time 

3  6  Ewing  V.  Blount,  20  Ala.  694;  Simpson  v.  Alexander,  35  Kan.  225,  11 
Pac.  171;   Cutler  v.  James  Goold  Co.,  43  Hun,  516. 

3T  Robinson  v.  Hartridge,  13  Fla.  501;  Spencc-  v.  Vance,  57  Mo.  427;  Cole 
T.  Ross,  9  B.  Mon.  393;  Spicer  v.  Waters,  65  Barb.  227;  Briscoe  v.  AIcElween. 
43  Miss.  556;  Dixon  v.  Caldwell,  15  Ohio  St.  412;  New  York  Guaranty  &  In- 
demnity Co.  V.  Flynn,  65  Barb.  365;  Fowler  v.  Merrill,  11  How.  375;  Watt  v. 
Potter,  2  Mason,  77,  Fed.  Cas.  No.  17.291;  Bourne  v.  Ashley,  1  Low.  27,  Fed. 
Cas.  No.  1,699;  Allen  v.  Dykers,  3  Hill,  593;  Lee  v.  xMathews,  10  Ala.  6S2; 
Moore  v.  Aldrich,  25  Tex.  Supp.  276:  Ripley  v.  Davis,  15  Mich.  75;  Final  v. 
Backus,  18  I^Iich.  218;  Barry  v.  Bennett,  7  Mete.  (Mass.)  354;  Falk  v.  Fletcher, 
18  C.  B.  (N.  S.)  403;  Taylor  v.  Ketchum,  5  Rob.  (N.  Y.)  507;  Selkirk  v.  Cobb. 
13  Gray,  313;  Agnew  v.  Johnson,  22  Pa.  St.  471;  Thillips  v.  Speyers,  49  N.  Y. 
«53;  Tyng  v.  Commercial  Warehouse  Co.,  58  N.  Y.  308;  Andrews  v.  Duraut. 
18  N.  Y.  496;  Ormsby  v.  Vermont  Copper  .Alin.  Co.,  56  N.  Y.  623;  Douglass 
V.  Kraft,  9  Cal.  562;  Yater  v.  Mullen,  24  Ind.  277;  Dillenback  v.  Jerome,  7 
Cow.  298;  Dennis  v.  Barber,  b  Serg.  &  R.  420;  Ilurd  v.  Hubbcll,  26  Conn. 
389;  Cook  v.  Loomis,  Id.  48;i;  Lyon  v.  Gormley,  53  I'a.  St.  2(il;  Stirling  v. 
-Garritee,  18  Md.  468;  Carlyon  v.  Lannan,  4  Nev.  156;  Boylan  v.  Huguet,  S 
Nev.  345;  Hamer  v.  Hathaway,  33  Cal.  117;  Page  v.  Fowler,  39  Cal.  412; 
Riley  v.  Martin,  35  Ga.  136:  Grant  v.  King,  14  Vt.  367;  Crumb  v.  Oaks,  38 
Vt.  566;  Kennedy  v.  Strong,  14  Johns.  128;  RyUurn  v.  Prj'or,  14  Ark.  50.'i; 
Hatcher  v.  Pelham,  31  Tex.  201;  Jenkins  v.  .McConlco,  26  Ala.  213;  Robinson 
V.  Barrows,  48  .Me.  186;    Sanders  v.  Vance.  7  T.  B.  .Mon.  209;    Clark  v.  Whit- 


186  VALLiE.  (Ch.  t> 

and  place  of  taking.^ ^  In  actions  for  breach  of  a  contract  of  sale, 
it  is  the  value  at  the  time  and  place  the  goods  should  have  beea 
delivered.^ ^  An  important  exception  to  the  rule  is  sometimes  rec- 
ognized in  the  case  of  property  of  a  fluctuating  value,  and  especially 
in  the  case  of  corporate  stocks. 


SAME— HIGHEST  INTERMEDIATE  VALUE. 

80.  In  many,  but  not  all,  jurisdictions,  -where  one  has 
been  T^rongfully  deprived  of  property  of  a  fluctu- 
ating value,  the  highest  value  intermediate  the 
■wrong  and  the  end  of  the  trial,  is  the  measure 
of  damages,  provided  the  action  is  brought  -within 
a  reasonable  time. 

EXCEPTION — The  rule  is  sometimes  confined  to  trans- 
actions  in  stocks. 

aker,  19  Conn.  319;  Linville  v.  Black,  5  Dana,  177;  Commercial  &  Agricul- 
tural Bank  v.  Jones,  18  Tex.  811;  Davis  v.  Fairclough,  63  Mo.  61;  Dainiel  v. 
Holland,  4  J.  J.  Marsh,  26;  King  v.  Ham,  6  Allen,  298;  Lillard  v.  Whitaker, 
3  Bibb,  92;  Scull  v.  Briddle,  2  Wash.  C.  C.  150,  Fed.  Cas.  No.  12,509;  Willianm 
V.  Crum,  27  Ala.  468;  Kennedy  v.  Whitwell,  4  Pick.  406;  Liuam  v.  Reeves, 
68  Ala.  89;  Jones  v.  Horn,  51  Ark.  19,  9  S.  W.  309;  Brasher  v.  Holtz,  12  Colo, 
201,  20  Pac.  616;  Ford  v.  Roberts,  14  Colo.  291,  23  Pac.  322;  Skinner  v.  Pin- 
ney,  19  Fla.  42;  Brewster  v.  Van  Liew,  119  111.  55i,  8  N.  E.  842;  First  Nat, 
Bank  v.  Strang,  28  111.  App.  325,  338;  Thew  v.  Miller,  73  Iowa,  742,  36  N.  W. 
771;  Simpson  v.  Alexander,  35  Kan.  225,  11  Pac.  171;  Chamberlaiu  v.  Worrell, 
38  La.  Ann.  347;  Hopper  v.  Haines,  71  Md.  04,  18  Atl.  29,  and  2a 
Atl.  159;  Forbes  v.  Boston  &  L.  R.  Co.,  133  Mass.  154;  Jellett  v.  St.  Paul, 
M.  &  M.  Ry.  Co.,  30  Minn.  265,  15  N.  W.  237;  Black  v.  Robinson,  62  Miss. 
68;  Nance  v.  Metcalf,  19  Mo.  App.  183;  Barlass  v.  Braash,  27  Neb.  212,  42 
N.  W.  1028;  Beede  v.  Lamprey,  64  N.  H.  510,  15  Atl.  133;  Railroad  Co.  v. 
Hutchins,  37  Ohio  St.  282;  Blum  v.  Merchant,  58  Tex.  400;  Miller  v.  Jannett. 
63  Tex.  82;  Crampton  v.  Valido  Marble  Co.,  60  Vt.  291,  15  Atl.  153;  Arkansas 
Val.  Land  &  Cattle  Co.  v.  Mann,  130  U.  S.  69,  9  Sup.  Ct.  45S;  Ghen  v.  Rich,  S 
Fed.  159;  Neiswanger  v.  Squler,  73  Mo.  192;  Ingram  v.  Rankin,  47  Wis.  406, 
2  N.  W.  755;   Perkins  v.  Marrs,  15  Colo.  262,  25  Pac.  168. 

38  Indiana,  B.  &  W.  Ry.  Co.  v.  Allen,  100  Ind.  409;  Chaffee's  Appeal.  .50 
Mien.  244,  22  N.  W.  871;  AUoway  v.  City  of  NashvUle,  88  Tenn.  511,  13  S, 
W.  123. 

8  8  See  post,  p.  241. 


§    80)  HIGHEST    INTERMEDIATE    VALUE.  l87 

In  actions  for  conversion,  an  exception  to  the  rule  that  the  meas- 
ure of  damages  is  the  value  of  the  property,  with  interest  from  the 
time  of  conversion,  has  been  recognized  where  the  property  is  of  a 
fluctuating  value.*"  In  such  cases,  in  many  jurisdictions,  the  plain- 
tiff is  entitled  to  recover  the  highest  value  the  property  has  reached 
at  any  time  intermediate  the  conversion  and  the  end  of  the  trial, 
provided  the  action  be  brought  within  a  reasonable  time.  This  ex- 
ception has  given  rise  to  great  conflict  in  the  decisions.  It  pro- 
ceeds upon  the  principle  that,  where  an  owner  is  wrongfully  deprived 
of  his  property,  he  and  not  the  wrongdoer  should  have  the  benefit 
of  a  subsequent  increase  in  value,  and  that  to  hold  otherwise  would 
practically  permit  one  to  force  a  sale  to  himself,  at  his  own  price, 
by  selecting  a  period  of  great  depression  to  convert  the  property, 
and,  by  having  the  benefit  of  a  subsequent  increase  in  value,  to  re- 
ceive large  profits  from  his  own  wrong."*^  These  reasons  are  equally 
applicable  in  all  cases  where  one  is  wrongfully  deprived  of  his  prop- 
erty, and  the  rule  has  accordingly  been  applied  in  actions  of  det- 
inue *^  and  replevin,  *^  in  actions  for  refusal  to  transfer  or  deliver 
corporate  stock,  **  and  in  actions  for  failure  to  deliver  goods  sold, 
the  price  of  which  had  been  paid  in  advance.*^  The  rule  of  dam- 
age should  not  depend  on  the  form  of  action ;  and,  indeed,  the  Codes 
have  very  generally  abolished  all  artificial  distinctions. 

Objections  to  the  Doctrine. 

A  just  indemnity  for  all  losses  which  are  the  natural,  proximate, 
and  certain  results  of  the  wrong  complained  of,  is  the  rule  of  com- 

4  0  The  qualification  that  the  property  be  of  a  fluctuating  value  would  seem 
to  he  unimportant,  as  it  is  doubtful  if  there  is  any  property  entirely  stable  in 
value;  and,  besides,  if  the  property  did  not  fluctuate,  it  would  be  Immaterial 
at  what  time  the  value  was  taken.     Field,  Dam.  §  71)9. 

41  Suth.  Uam.  §  1119;    Field.  Uam.  §  812. 

4  2  Johnsob  V.  Marshall,  34  Ala.  522. 

4  3  In  Suydam  v.  Jenkins,  3  Sandf.  614,  it  was  held  that  the  damages  recov- 
erable in  replevin  were  the  same  as  in  trover,  but  that  in  neither  case  was 
the  rule  of  highest  intermediate  value  of  invariable  application. 

4  4  Bank  of  Montgomery  Co.  v.  Ueese,  2G  I'a.  St.  143;  Musgrave  v.  Becken- 
dorff,  53  Pa.  St  310. 

4B  Oilman  v.  Andrews,  GO  Iowa,  IKJ,  23  N.  W.  2!)1 ;  Harrison  v.  Charlton.  37 
Iowa,  134;  Myer  v.  Wheeler,  G5  Iowa.  .390,  21  N.  W.  G92;  Gregg  v.  Fltzhugh, 
'id  Tex.  127;    Kent  v.  Giuter.  2:5  Iiid.  1. 


188  VALUE.  (Ch.  6 

pensation,  whether  the  action  be  in  contract  or  in  tort.  Testing  the 
rule  of  highest  intermediate  value  by  this  principle,  several  objec- 
tions to  its  adoption  as  a  uniform  rule  of  damages  become  apparent. 
For  instance,  on  what  principle  can  the  plaintiff  be  said  to  have  lost 
the  highest  intermediate  value,  when  the  property  was  not  intended 
for  sale,  but  for  use,  or  even,  when  the  property  was  intended  for 
sale,  if  it  would  have  been  sold  in  the  course  of  business  before  the 
advance  occurred?  *°  It  is  true  that  in  some  cases  the  plaintiff  may 
have  been  injured  to  the  extent  of  the  highest  value  of  the  property 
at  any  time  before  the  trial;  but,  perhaps  in  the  majority  of  cases, 
this  would  not  be  so.  In  the  case  of  raw  material,  perishable  prop- 
erty, or  property  intended  for  consumption,  the  probabilities  are  that 
it  would  have  been  disposed  of  within  a  short  time,  and  no  benefit 
would  have  been  realized  by  the  subsequent  increase  in  value.*^ 
Again,  the  presumption  that  the  owner  would  have  disposed  of  his 
property  when  it  reached  the  highest  figure  would  not  accord  with 
fact  once  in  a  hundred  times. ''^ 

The  objections  to  the  doctrine  have  been  ably  stated  by  Ducr,  J.:** 
"When  the  evidence  justifies  the  conclusion  that  a  higher  price 
would  have  been  obtained  by  the  owner  had  he  kept  the  possession, 
or  has  been  obtained  by  the  wrongdoer,  we  have  admitted  and 
shown  that  it  ought  to  be  included  in  the  estimate  of  damages, — 
in  the  first  case,  as  a  portion  of  the  indemnity  to  which  the  owner 
is  entitled,  and,  in  the  second,  as  a  profit  which  the  wrongdoer  can- 
not be  permitted  to  retain;  but  we  cannot  admit  that  the  same  rule 
is  to  be  followed  where  nothing  more  is  shown  than  a  bare  possi- 
bility that  the  highest  price  would  have  been  realized,  and  still  less 
where  it  is  proved  that  it  would  not  have  been  obtained  by  the  owner, 
and  has  not  been  obtained  by  the  wrongdoer.  *  *  *  Our  objec- 
tions to  considering  an  intermediate  higher  value  as  an  invariable 
rule  of  damages  have  already  been  stated,  and  need  not  be  repeated. 
It  is  perfectly  just,  when  the  enhanced  price  has  been  realized  by 
the  wrongdoer,  or  it  is  reasonable  to  believe  w^ould  have  been  real- 
ized by  the  owner,  had  he  retained  the  possession;  but  in  all  other 

46  Sedg.  Dam.  (8th  Ed.)  §  509,  note,  on  page  110. 

*^  Pinkerton  v.  Uailroad,  42  N.  H.  424,  402. 

48  AVright  V.   Bank,    110  xN.    Y.   2:i7.  24(J.   IS   N.   E.   10. 

■49  Suydam  v.  Jenkins,  '6  SaucJf.  U14,  024,  02'J. 


§    SO)  HIGHEST    INTERMEDIATE    VALUE.  189 

cases  damages  founded  upon  such  an  estimate  are  either  purely 
gpeculative  or  pUiinly  vindictive.  They  are  conjectural  and  specu- 
lative when  it  is  barely  possible  that  the  owner,  had  he  retained  the 
possession,  would  have  derived  a  benefit  from  the  higher  value. 
They  are  vindictive  when  it  is  certain  that  no  such  benefit  could 
have  resulted  to  him." 

If  the  rule  limiting  damages  to  the  value  of  the  property  at  the 
time  of  conversion,  with  interest  thereon,  is  to  be  departed  from  in 
any  case,  and  a  higher  value  allowed,  it  would  seem,  on  principle, 
that  it  should  be  done  only  when  it  is  proved,  and  not  merely  pre 
Bumed,  that  the  higher  value  would  actually  have  been  realized.^" 

The  rule  of  highest  intermediate  value  has  not  met  with  universal 
favor.  In  many  jurisdictions  it  is  repudiated  altogether,  and  in 
others  itR  application  is  greatly  limited.  Sometimes  it  is  applied 
only  to  stock  transactions,  ^^  and  sometimes  it  is  applied  to  any 

BO  Sedg.  Dam.  (8th  Ed.)  §  509,  note;  Meshke  v.  Van  Doren,  16  Wis.  319 r 
;5uydam  v.  Jenkins,  3  Sandf.  (514,  629;  Symes  v.  Oliver,  13  Mich.  9;  Ewart  v. 
Kerr,  2  McMul.  141;  De  Ulerq  v.  Mungin,  46  111.  112;  Ingram  v.  Kankin,  47 
Wis.  406,  420,  2  N.  W.  755.  Where  defendant  is  in  possessioi  of  the  property 
at  the  time  of  trial,  there  is  no  injustice  in  compelling  him  to  pay  its  value  at 
that  time.     Suth.  Dam.  §  1125;    Ingram  v.  Kankin,  47  Wis.  420,  2  N.  W.  755. 

Bi  Field,  Dam.  §§  SOS,  S12.  Bank  of  Montgomery  Co.  v.  Reese,  26  Pa.  St.  143. 
In  Suydam  v.  Jenkins,  3  Sandf.  614,  633,  the  distinction  between  stocks  and 
ether  personal  property  was  justified  on  the  ground— "First,  that  as  chancery 
may  decree  a  specific  execution  of  a  contract  for  replacing  stock,  and  the  de- 
fendant, when  such  a  decree  is  made,  to  enable  himself  to  perform  it,  must 
of  necessity  purchase  the  stock  at  its  then  market  price,  he  can  have  no  right 
to  complain  when  he  is  compelled  to  pay  the  same  sum  as  damages,  by  the 
judgment  of  a  court  of  law;  and,  second,  that  as  stock  is  usually  held,  not  for 
sale,  but  as  a  permanent  investment,  it  is  a  reasonable  presumption  that,  had 
it  not  been  replaced  at  the  stipulated  time,  whatever  It  might  be  is  no  more 
than  an  indemnity."  But,  as  Mr.  Sedgwick  has  pointed  out  (2  Sedg.  Dam.  [Sth 
Ed.]  p.  110,  note),  though  these  are  the  reasons  commonly  assigned  for  the 
distinction,  it  is  very  doubtful  whether  a  decree  can  be  had  for  specitic  per- 
formance of  such  an  agreement,  damages  being  an  adequate  remedy  for  the 
breach.  Story,  Eq.  Jur.  §§  717,  717a;  Buxton  f.  Lister,  3  Atk.  3S3;  Sullivan 
v.  Tuck,  1  Md.  Ch.  59.  And  as  to  stocks  of  a  fluctuating  value,  it  is  quite  as 
probable  that  they  were  bought  for  speculation  as  tliar  tliey  wire  bnugiit  for 
investment.  Mr.  Field  also  comos  to  the  conclusion  that  there  is  no  sound  dis- 
tinction in  this  regard  between  stocks  and  other  personal  property.  I'Mil,  . 
Dam.  §  813. 


190  VALUE.  (Ch.  6 

transaction  in  merchandise  of  a  fluctuating  value.  It  would  be  an 
herculean  task  to  review  all  the  various  and  conflicting  opinions 
that  have  been  delivered  on  this  subject,  but  we  shall  notice  a  few 
as  illustrations  of  the  different  views  taken. 

Applications  of  the  Rule. 

In  New  York,  in  an  early  case,  ^^  the  rule  was  adopted  in  its 
broadest  terms,  no  distinction  being  made  between  stocks  and  other 
personal  property.  The  action  was  for  the  conversion  of  stock.  The 
trial  was  a  protracted  one,  and  during  its  continuance  the  value  of 
the  stock  increased  over  |2,000,  which  the  plaintiff  was  allowed  to 
recover.  The  rule  adopted  was  that,  where  there  is  any  uncertainty 
or  fluctuation  attending  the  value,  and  the  chattel  afterwards  rises 
in  value,  the  plaintiff  is  entitled  to  recover  the  highest  market  value 
of  the  property,  at  any  time  intermediate  the  conversion  and  the  end 
of  the  trial,  provided  the  action  is  brought  within  a  reasonable  time. 
In  a  later  case  ^^  a  different  rule  was  sanctioned.  The  action  was 
for  the  conversion  of  wheat,  and  the  measure  of  damages  adopted 
was  the  highest  value  between  the  time  of  conversion  and  a  reason- 
able time  thereafter  in  which  to  commence  the  action.  The  court 
said: 

**In  the  absence  of  any  definite  means  for  ascertaining  the  period 
when  the  owner  of  the  property  would  have  disposed  of  it,  we  are 
necessarily  more  or  less  in  the  dark  as  to  the  amount  of  injury  which 
he  has  sustained  by  the  illegal  act  of  the  defendants,  and  are  driven 
to  resort  more  or  less  to  conjecture,  or  to  fix  upon  some  arbitrary 
period  for  determining  the  price  of  the  property.  It  is  obviously  a 
rule  of  doubtful  justice  to  give  to  the  plaintiff  the  whole  period  un- 
til the  statute  of  limitations  would  attach  for  the  commencement 
of  this  action,  and  the  whole  period  intervening  between  the  conver- 
sion and  the  trial  to  select  his  standard  of  price,  ^^athout  ever  hav- 
ing given  notice  of  his  intention  to  adopt  the  price  of  any  partic- 
ular period.  A  much  more  just  and  equitable  rule,  independent  of 
adjudications  upon  this  question,  would  seem  to  be  to  allow  to  the 

62  Romaine  v.  Van  Allen,  '2i5  N.  Y.  309.  See,  also,  Cortelyou  v.  Lansing.  2 
Caines,  Cas.  200;  West  v.  Wentworth,  3  Cow.  82;  Wilson  v.  Mathews.  24 
Barb.  295.  In  Brass  v.  Worth,  40  Barb.  648.  a  rule  was  declared  more  nearly 
consistent  with  the  later  than  the  earlier  authorities. 

53  Scott  V.  Rogers,  31  >J.  Y.  tJTU,  1182. 


•§    80)  HIGHEST    INTERMEDIATE    VALUE.  191 

plaintiff  some  reasonable  period,  within  the  statute  of  limitations, 
for  fixing  the  price  of  the  property,  provided  he  notifies  the  adverse 
party  at  the  time  of  such  act  on  his  part,  but  never  to  allow  him 
unlimited  liberty  of  selection  as  to  the  price  of  which  he  will  avail 
himself  at  the  trial  of  the  cause.  If  he  does  not  make  and  notify  his 
■election  of  time,  then  to  fix  the  time  by  the  day  of  commencing  the 
action,  provided  the  action  be  commenced  within  a  reasonable  time 
after  the  conversion.  This  is  an  election  to  hold  the  defendant  lia- 
ble for  the  conversion,  and,  in  effect,  to  treat  the  property  as  his. 
*  *  *  This  seems  to  me  the  just  and  equitable  rule.  It  is  not, 
however,  perhaps,  quite  the  rule  which  has  obtained  in  the  law  for 
settling  the  question  of  damages  in  the  case  of  an  illegal  conver- 
sion of  property.  *  *  *  i  think  the  rule  of  damages  applicable 
to  cases  of  this  description  is  reasonably  well  settled  to  be  as  liberal 
as  this  in  favor  of  the  plaintiff,  to  wit,  to  allow  to  the  plaintiff  the 
highest  price  for  the  property  prevailing  between  the  time  of  con- 
version and  a  reasonable  time  afterwards  for  the  commencement  of 
the  action.  Some  of  the  cases  carry  the  period  up  to  the  time  of 
trial  of  a  suit  commenced  within  a  reasonable  time;  and,  as  be- 
tween these  two  periods, — the  time  of  commencing  the  suit,  and  the 
time  of  trial, — the  rule  is  somewhat  fluctuating.  What  this  reason- 
able time  shall  be  has  never  been  definitely  settled,  and  may,  per- 
haps, fluctuate  to  some  extent,  according  to  the  circumstances  of  the 
particular  case." 

Though  the  rule  sanctioned  in  this  case  differed  materially  from 
that  adopted  in  the  earlier  case,  the  latter  has  not  been  regarded 
as  overruled,  but,  on  the  contrary,  has  been  followed  in  later  cases.''* 
These  cases  have  been  overruled  in  so  far  as  stock  transactions  are 
concerned,  on  the  ground  that  the  loss  of  the  highest  intermediate 
value  is  not  a  natural,  proximate,  or  certain  result  of  the  wrong. 
In  Baker  v.  Drake '^'^  the  court  said:  "This  enormous  amount  of 
profit,  given  under  the  name  of  damages,  could  not  have  been  ar- 

64  Burt  V.  Dutcher,  34  N.  Y.  493;  Markham  v.  Jaudon,  41  N.  Y.  23.1;  I.obdoll 
V.  Stowell,  51  N.  Y.  70.  See,  also,  Morsan  v.  Gre;:^,  4G  Barb.  183;  I^awrence 
V.  Maxwell,  G  Lans.  4(iU;  Nauman  v.  Caldwell,  2  Sweeney,  212.  In  MatUiews 
V.  Coe,  41)  N.  Y.  ij7,  the  court  distinguished  earlier  cases,  but  Intimated  tliat 
the  rule  was  not  so  tirmly  settled  as  to  be  beyond  the  reach  of  review. 

86  53  N.  Y.  211,  215. 


1^2  VALUE,  (Ch.  (? 

rived  at  excei)t  upon  the  unreasonable  supposition,  unsupported  by 
any  evidence,  that  the  plaintiff  not  only  would  have  supplied  the 
necessary  margin  and  caused  the  stock  to  be  carried  through  all  it» 
fluctuation,  until  it  reached  its  highest  point,  but  that  he  would  have 
been  so  fortunate  as  to  seize  upon  that  precise  moment  to  sell,  thus 
avoiding  the  subsequent  decline,  and  realizing  the  highest  profit 
which  could  have  possibly  been  derived  from  the  transaction  by  one 
endowed  with  the  supernatural  power  of  prescience."  The  court 
held  that,  in  this  class  of  cases,  it  was  the  owner's  duty  to  avoid  fur- 
ther loss  by  going  into  the  market  and  replacing  the  stock,  and  that 
the  market  price,  within  a  reasonable  time  after  notice  of  the  con- 
version in  which  to  do  so,  was  the  measure  of  damages.  This  rule 
was  reaffirmed  in  a  later  case,"**  where  it  was  said:  "It  is  the  nat- 
ural and  proximate  loss  which  the  plaintiff  is  to  be  indemnified  for^ 
and  that  cannot  be  said  to  extend  to  the  highest  price  before  trials 
but  only  to  the  highest  price  reached  within  a  reasonable  time  after 
the  plaintiff  had  learned  of  the  conversion  of  his  stock  within  which 
he  could  go  in  the  market  and  repurchase  it."  It  was  held  in  this^ 
case  to  be  immaterial  whether  the  stock  was  owned  absolutely,  or 
simply  carried  on  margins, — a  distinction  suggested  in  the  earlier 
case. 

The  supreme  court  of  the  United  States  has  adopted  the  rule  of 
the  New  York  court  in  regard  to  stock  transactions.^^  ''It  has  been 
assumed,  in  the  consideration  of  the  case,  that  the  measure  of  dam- 
ages in  stock  transactions  of  this  kind  is  the  highest  intermediate 
value  reached  by  the  stock  between  the  time  of  the  wrongful  act 
complained  of  and  a  reasonable  time  thereafter,  to  be  allowed  to  the 
party  injured  to  place  himself  in  the  position  he  would  have  been  in 
had  not  his  rights  been  violated.  This  rule  is  most  frequently  ex- 
emplified in  the  wrongful  conversion  by  one  person  of  stocks  belong- 
ing to  another.  To  allow  merely  their  value  at  the  time  of  conver- 
sion would,  in  most  cases,  afford  a  very  inadequate  remedy,  and,  in 
case  of  a  broker,  holding  the  stocks  of  his  principal,  it  would  af' 
ford  no  remedy  at  all.     The  effect  would  be  to  give  to  the  broker 

5G  Wright  V.  Bank.  110  N.  1'.  237,  240,  IS  N.  E.  79.  See,  also.  Baker  t. 
Drake,  G(J  N.  Y.  518;  Gruman  y.  Smith,  SI  N.  Y.  25;  Colt  v.  Owens,  90  N.  Y, 
308. 

67  Galigber  v.  Jones,  129  U.  S.  193,  200,  9  Sup.  Ct.  335. 


§    80)  HIGHEST    INTERMEDIATE    VALUE.  193 

the  control  of  the  stock,  subject  only  to  nominal  damages.  The  real 
injury  sustained  by  the  principal  consists,  not  merely  in  the  assump- 
tion of  control  over  the  stock,  but  in  the  sale  of  it  at  an  unfavorable 
time  and  for  an  unfavorable  price.  Other  goods  wrongfully  con- 
verted are  generally  supposed  to  have  a  fixed  market  value  at  which 
they  can  be  replaced  at  any  time;  and  hence,  with  regard  to  them, 
the  ordinary  measure  of  damages  is  their  value  at  the  time  of  con- 
version, or,  in  case  of  sale  and  purchase,  at  the  time  fixed  for  their 
delivery.  But  the  application  of  this  rule  to  stocks  would,  as  be- 
fore said,  be  very  inadequate  and  unjust.  The  rule  of  highest  inter- 
mediate value,  as  applied  to  stock  transactions,  has  been  adopted 
in  England  and  in  several  of  the  states  in  this  country,  while  in 
some  others  it  has  not  obtained.  *  *  *  On  the  whole,  it  seems 
to  us  that  the  New  York  rule,  as  finally  settled  by  the  court  of  ap- 
peals, has  the  most  reasons  in  its  favor,  and  we  adopt  it  as  a  cor- 
rect view  of  the  law." 

In  Pennsylvania  the  rule  of  highest  intermediate  value  was  adopt- 
ed with  reference  to  stock  transactions,  ^®  but  not  in  regard  to  per- 
sonal property  in  general.^®  The  rule  w'as  afterwards  declared  ap- 
plicable only  where  the  defendant  was  under  a  contract  or  trust  duty 
to  deliver  stock,  ^°  and  still  later  it  was  held  that  the  rule  did  not 
apply  to  actions  of  trover  nor  to  ordinary  stock  contracts,  but  only 
to  cases  in  which  there  was  a  trust  relation  between  the  parties,  and 
in  cases  W'here  justice  cannot  be  reached  by  the  ordinary  measure 
of  damages.®^ 

In  Alabama,  it  is  discretionary  with  the  jury  to  allow  such  value 
as  they  deem  proper  between  the  highest  value  reached  before  trial 
and  the  value  at  the  time  of  conversion.*'-    "This  discretion  of  the  jury 

ns  Bank  of  Montgomery  Co.  v.  Reese,  2G  Pa.  St.  1-13;  Miisgrave  v.  Bocken- 
dorff,  53  Pa.  St.  310. 

50  Smethurst  v.  Woolston,  5  Watts  &  S.  lOG  (noiulolivory  of  chattels);  Xoilci- 
V.  Kelley,  GU  Pa.  St.  403  (conversion  of  pledged  stock). 

60  Noilcr  V.  Kelley,  GO  Pa.  St.  403;  Work  v.  Bennett,  70  Pa.  St.  481;  Piiil- 
lips'  Appeal.  G8  Pa.  St.  130. 

01  Huntington  &  B.  T.  K.  &c  Coal  Co.  v.  Knplisli.  SO  I*a.  St.  lilT;  X<jrtli  v. 
Phillips,  80  Pa.  St.  L'.'jO;  Wagner  v.  I'etersou,  8.3  Pa.  St.  li.3S.  Thi-  trust  rela- 
tion would  probably  be  deemed  to  exist  l>etween  a  stock  broker  and  his  cliciil. 
Galigher  v.  .Jones.  lliO  IJ.  S.  10.3,  201,  0  Sup.  Ct.  .33.'). 

C2  i.neb   V.    I'iasii.   G.j  Ala.  G'JG;    Street  v.   Nelson,   G7  Ala.  r>()l;     Ueiilio   v. 

L.\W  DAM.  — 13 


ini  VALUE.  (Ch.  6 

in  selecting  the  exact  period  of  valuation  should  be  exercised  in  such 
a  manner  as  to  prevent  the  defendant  from  reaping  a  pecuniary  prof- 
it through  his  wrongful  act,  and  at  the  same  time,  in  proper  cases, 
to  permit  the  special  equities  or  hardships  of  the  particular  case  so 
to  operate  in  the  mitigation  of  damages,  as  exact  justice  may  re- 
quire." ^^ 

In  Mississippi,  the  measure  of  damages  is  the  value  at.  the  time 
of  conversion,  with  interest,  except  in  the  following  classes  of  cases: 
(1)  Where  the  original  act  was  wrongful ;  (2)  where  it  was  bona  fide,  but 
the  defendant  subsequently  disposed  of  the  property  wrongfully  and 
with  knowledge  of  the  plaintiff's  claim;  (3)  where  the  taking  and  dis- 
position of  the  property  were  both  in  good  faith,  but  the  defendant 
seeks  to  retain  the  excess  of  the  proceeds  of  the  sale  over  the  market 
value  at  the  time  of  the  conversion  "as  a  speculation";  (4)  where  the 
I)roperty  has  some  peculiar  value  to  plaintiff,  and  is  willfully  taken 
or  withheld  by  the  defendant."* 

The  rule  of  higher  intermediate  value  has  been  adopted,  with  more 
or  less  variations,  in  other  jurisdictions,  "^  but  in  perhaps  the  ma- 
jority of  them  it  has  been  denied.*^ ^     In  all  jurisdictions  the  action 

Hughes,  69  Ala.  581.  See,  also,  Tatum  v.  Manning,  9  Ala.  144;  Ewing  v. 
Blount,  20  Ala.  094;  Jenkins  v.  McConico,  26  Ala.  213;  Johnson  v.  Marshall. 
34  Ala.  522.  Formerly,  in  case  of  nondelivery  of  goods  sold,  the  rule  was  not 
applied.     Rose  v.  Bozeman,  41  Ala.  078. 

6  3  Burks  V.  Hubbard,  09  Ala.  379,  384. 

64  Whitlield  v.  Whitfield,  40  Miss.  352,  307.  See,  also,  Bickell  v.  Colton,  41 
Miss.  308. 

6  5  Cannon  v.  Folsom,  2  Iowa,  101;  Harrison  v.  Charlton,  37  Iowa,  134; 
Oilman  v.  Andrews,  GO  Iowa,  116,  23  N.  W.  291;  Ellis  v.  Wire,  33  Ind.  127; 
Gregg  V.  Fitzhugli,  30  Tex.  127;  Kandon  v.  Barton,  4  Tex.  289;  Brasher  v. 
Davidson,  31  Tex.  190;  Kid  v.  Mitchell,  1  Nott  &  McC.  334.  And  see  Pick- 
ert  V.  Kugg,  1  N.  D.  230,  46  N.  W.  446. 

6  6  Kennedy  v.  Whit  well,  4  Pick.  400;  Greenfield  Bank  v.  Leavitt,  17 
Pick.  1;  Gray  v.  Bank,  3  Mass.  304;  Hussey  v.  Bank,  10  Pick.  415;  Fisher 
V.  Brown,  104  Mass.  259  (but  see  Maynard  v.  Pease,  99  Mass.  555);  Brewster 
v.  Van  Liew,  119  III.  554,  8  N.  E.  S42;  Galena  &  S.  W.  R.  Co.  v.  Ennor,  123 
111.  505,  14  N.  E.  673;  Smith  v.  Dunlap,  12  111.  184;  Cushman  v.  Hayes,  40 
111.  145;  Bates  v.  Stansell,  19  Mich.  91;  Jackson  v.  Evans,  44  Mich.  510, 
7  N.  W.  79;  Ingram  v.  Rankin,  47  Wis.  406,  2  N.  W.  755;  Noonan  v.  Ilslcy. 
17  Wis.  314;  White  v.  Salisbury,  33  Mo.  150;  Walker  v.  Borland,  21  Mo.  289; 
Pinkerton  v.  Railroad  Co.,  42  N.  H.  424,  463;    Enders  v.  Board,  1  Grat.  3li4; 


§§   81-82)  MEDIUM    OF    PAYMENT LICGAL    TENDERS.  195 

must  be  brought  within  a  reasonable  time,  or  the  rule  does  not  ap- 
ply." 

MEDIUM  OF  PAYMENT— LEGAL  TENDERS. 

81.  Damages  must  be  assessed  and  paid  in  domestic  money. 

82.  Money  means  coin,  in  the  absence  of  statutes  declar- 

ing something  else  a  legal  tender. 

Damages  must  be  assessed  and  paid  in  money,  ®*  and,  in  the  ab- 
sence of  statute,  money  means  coin.®®  It  would  be  a  simple  matter, 
ordinarily,  to  estimate  the  amount  due  on  a  contract  for  the  payment 
of  money,  if  there  were  but  a  single  standard  of  money,  and  that 
standard  remained  unchanged  between  the  time  of  contract  and  the 
date  of  payment.  But  where  there  are  two  or  more  standards  of 
dilferent  intrinsic  value,  or  where  the  standard  has  been  changed, 
difficult  problems  may  arise. 

By  the  legal  tender  acts,  ^°  it  was  declared  that  certain  treasury 
notes  of  the  United  States  should  be  a  legal  tender  in  payment  of 
debts.  The  effect  of  these  acts  was  to  establish  a  new  and  addi- 
tional standard  of  money,  nominally,  but  not  intrinsically,  equal  to 
the  old.  It  was  decided  that  the  acts  were  constitutional,  and  ap- 
plied to  antecedent  as  well  as  subsequent  contracts.'^  ^  Many  ex- 
ceedingly important  and  difficult  questions  thereupon  arose,  such  as 

Third  Nat.  Bank  of  Baltimore  v.  Boyd,  44  Md.  47;  Baltimore  City  Passenger 
Ry.  Co.  V.  Sewell,  35  Md.  23S;  Andrews  v.  Clark,  72  Md.  39G,  20  Atl.  429; 
Fosdick  V.  Greene,  27  Ohio  St.  484;  Arrington  v.  Railroad  Co.,  G  Jones  (N.  C.) 
68  (but  see  Boylston  Ins.  Co.  v.  Davis,  70  N.  C.  485). 

07  If  there  is  an  unreasonable  delay,  the  measure  of  damages  is  the  value 
at  the  time  of  the  injury.    Heilbrouer  v.  Douglass,  45  Tex.  402. 

C8  Sedg.  Dam.  §  26G. 

69  Field,  Dam.  §  21G;    Gwin  v.  Brecdlove,  2  How.  (U.  S.)  29. 

7  0  Rev.  St.  U.  S.  1875,  p.  712,  c.  39,  §  3589;    12  Stat.  345;    Id.  709;    Id.  21S. 

71  Knox  V.  Lee;  Parker  v.  Davis  (legal  tender  cases)  12  Wall.  (U.  S.)  457; 
Dooley  v.  Smith,  13  Wall.  (U.  S.)  G04;  Juilliard  v.  Greenman,  110  U.  S.  421, 
4  Sup.  Ct.  122.  These  cases  overruled  Hepburn  v.  Griswold,  8  Wall.  (U.  S.) 
G03.  which  held  the  acts  unconstitutional  as  to  antecedent  contracts.  The 
state  courts  generally  sustained  the  acts.  See  Metropolitan  Bank  v.  ^  an 
Dyck,  27  N.  Y.  400;  Meyer  v.  Roosevelt,  Id.;  Lewis  v.  Railroad  Co.,  G  Am. 
Law  Reg.  (X.  S.)  70.T;  Lick  v.  I'\ui]kner,  25  Cal.  404;  Van  Ilusau  v.  Kanouse, 
i:;  .Midi.  :;0:5;    Wood  v.  Biiliciis,  G  Allen,  51G. 


19G  VALUE.  (Ch.  &■ 

the  ricfht  of  parties  to  stipulate  for  payment  in  gold,  and  the  fonu 
of  judgment  on  such  a  contract. 

The  result  of  the  decisions  under  the  legal  tender  acts  has  been 
admirably  summed  up  by  Mr.  Field  as  follows:*  "(1)  That,  where 
a  contract  provides  for  the  payment  of  money  within  the  United' 
States  and  contains  no  stipulation  as  to  the  kind  of  money,  it  will' 
be  satisfied  by  a  tender  of  the  nominal  amount  in  legal  tender  notes ;- 
and  the  measure  of  damages  in  an  action  on  such  a  contract  is  the 
nominal  amount  due  in  legal  tender  notes.^-  (2)  That,  if  gold  or 
silver  coin  is  applied  in  payment  of  such  a  claim,  in  the  absence  of 
a  special  contract  in  relation  thereto,  it  will  be  applied  at  its  nominal 
value;  and  it  satisfies  to  the  same  extent,  and  no  more,  as  a  pay- 
ment of  an  equal  nominal  amount  in  legal  tender  notes.'^^  (3)  That,, 
where  a  contract  provides  specifically  for  payment  in  gold  or  silver 
coin,  the  coin  must  be  paid,  ^*  and  damages  for  the  breach  of  sucb 

*  Field,  Dam.  222. 

"2  Sedg.  Dam.  §  269.  Wbere  gold  is  deposited  in  bank,  payment  maj*  be 
made  in  legal  tender  paper.  Aurentz  v.  Porter,  5G  Pa.  St.  115.  See,  also,. 
Tbompson  v.  Riggs,  5  Wall.  663,  and  Marine  Bank  v.  Fulton  Bank,  2  Wall. 
252.  A  judgment  rendered  before  tbe  passage  of  tbe  act  is  satisfied  by  pay- 
ment in  legal  tender  paper  (Bo wen  v.  Clark,  46  Ind.  405).  tbough  it  was  for 
a  debt  created  by  tbe  loan  of  gold  (Mclnbill  v.  Odell,  62  111.  169).  See,  also,. 
Belloc  V.  Davis,  38  Cal.  242;    Longwortb  v.  Mitcbell,  26  Obio  St.  334. 

T3  Hancock  v.  Franklin  Ins.  Co.,  114  Mass.  155;  Stan  wood  v.  Flagg,  9S  Mass.. 
124;    Stark  v.  Coffin,  105  Mass.  328. 

7  4  Bronson  v.  Rodes,  7  Wall.  229.  In  Butler  v.  Horwitz,  Id.  25S,  260,  Cbase,- 
C.  J.,  said:  "A  contract  to  pay  a  certain  sum  in  gold  and  silver  coin  is,  in 
substance  and  legal  effect,  a  contract  to  deliver  a  certain  weigbt  of  gold  and 
silver  of  a  certain  fineness,  to  be  ascertained  by  count.  Damages  for  non- 
performance of  such  a  contract  maj-^  be  recovered  at  law  as  for  nonperform- 
ance of  a  contract  to  deliver  buUioa  or  other  commodity.  But  whether  the 
contract  be  for  the  delivery  or  payment  of  coin,  or  bullion,  or  other  property, 
damages  for  nonperformance  must  be  assessed  in  lawful  money, — that  is  to 
say,  in  money  declared  to  be  legal  tender  in  payment.  *  *  *  we  find  two 
descriptions  of  lawful  money  in  use  under  acts  of  congress,  in  either  of 
which  damages  for  nonperformance  of  contracts,  whether  made  before  or 
since  the  passage  of  the  currency  acts,  may  be  properly  assessed,  in  the 
absence  of  any  different  understanding  or  agreement  bet\Yeen  parties.  But 
the  obvious  intent,  in  contracts  for  the  payment  or  delivery  of  coin  or  bul- 
lion, to  provide  against  fluctuations  in  the  medium  of  payment,  warrants  the- 
inference  that  it  was  the  understanding  of  the  parties  that  such  contracts^ 


•|§    81-82)  MEDIUM    OF    PAYMENT LEGAL    TENDERS.  197 

A  contract  should  be  assessed  in  coin  for  the  nominal  amount;   and 
judgment  should  be  rendered  for  the  coin  stipulated,  and  not  for  its 
equivalent  value  in  treasury  legal  tender  notes;    and  such  a  judg- 
ment can  only  be  satisfied  by  specie  payment."  ^"^ 
Foreign  Currency. 

Foreign  currency  is  considered  merely  as  a  commodity,  and,  ac- 
■cordingly,  wherever  such  currency  is  involved,  judgment  is  given  for 
its  value  in  domestic  money.^®     As  the  value  is  to  be  estimated  as 

•sliould  be  satisfied,  whetlier  before  or  after  judgment,  only  by  tender  of 
coin,  which  the  absence  of  any  express  stipulation  as  to  description,  in  con- 
tracts for  payment  in  money  generally,  warrants  the  apposite  inference  of  an 
understanding  between  parties  that  such  contracts  may  be  satisfied,  before 
^r  after  judgment,  by  the  tender  of  any  lawful  money.  *  *  *  When, 
therefore,  it  appears  to  be  the  clear  intent  of  a  contract  that  payment  or 
satisfaction  shall  be  made  in  gold  or  silver,  damages  should  be  assessed  and 
judgment  rendered  accordingly." 

TsThe  Emily  Souder,  17  Wall.  6GG;  Chisholm  v.  Arrington,  43  Ala.  010; 
Bowen  v.  Darby,  14  Fla.  202;  Stringer  v.  Coombs,  G2  Me.  IGO;  Chesapeake 
Bank  v.  Swain,  29  Md.  483;  Independent  Ins.  Co.  v.  Thomas,  104  Mass.  192; 
Warren  v.  Franklin  Ins.  Co.,  Id.  518;  Stark  v.  Coflin,  105  Mass.  328;  Cur- 
rier V.  Davis,  111  Mass.  480;  Whitney  v.  Thacher,  117  Mass.  523;  Chrysler 
T.  Renois,  43  N.  Y.  209;  Phillips  v.  Speyers,  49  N.  Y.  G53;  Quinn  v.  Lloyd, 
1  Sweeney,  253;  Phillips  v.  Dugan,  21  Ohio  St.  4GG;  Bridges  v.  Reynolds, 
40  Tex.  205;  Johnson  v.  Stallcup,  41  Tex.  527.  In  some  states,  gold  was 
treated  like  ordinary  merchandise,  and  its  value  was  assessed  in  paper. 
Baker's  Appeal,  59  Pa.  St.  313;  Frank  v.  Calhoun,  Id.  381;  Dunn  v.  Barnes. 
73  N.  C.  273;  Wills  v.  Allison,  4  Heisk.  385;  Bond  v.  Greenwald,  Id.  453. 
In  Kellogg  v.  Sweeney,  46  N.  Y.  291,  it  was  held  that,  in  actions  of  tort  for 
the  loss  of  gold,  judgment  should  be  entered  in  gold  coin,  and  not  its  then 
■equivalent  in  pnper.     Contra,  Cushing  v.  Wells,  98  Mass.  550. 

"6  Pollock  V.  Colglazure,  Sneed  (Ky.)  2;  Sheehan  v.  Dalrymple,  19  Mich. 
239;  Fabbri  v.  Kalbfleisch,  52  N.  Y.  28;  Colton  v.  Dunham,  2  Paige,  2G7; 
Mather  v.  Kluike,  51  Pa.  St.  425;  Christ  Church  Hospital  v.  Fuechsel,  54 
Pa.  St.  71;  Nova  Scotia  Tel.  Co.  v.  American  Tel.  Co.,  4  Am.  Law  Kog. 
<N.  S.)  3G5.  In  Robinson  v.  Hall,  28  How.  Prac.  342,  and  Hawos  v.  Wool- 
cock,  2G  Wis.  G29,  it  was  held  that  the  value  of  foreign  currency  should  be 
estimated  at  the  date  of  the  trial  or  judgment,  instead  of  at  the  date  of 
performance.  But  this  cannot  be  sound  if  foreign  currency  is  regarded  as 
a.  commodity.  But  a  contract  which  Is  a  money  contract  wliere  entered  into 
Is  a  money  contract  everywhere.  To  this  extent  foreign  currency  dill'ci'H 
from  a  mere  chattel  or  commodity.  Such  a  contract  may  be  decljind  on  in 
<lebt,  or  in  assumpsit,   for  money  h.-id  and  received,   nioncv  lent,  i  ir.     Siilli. 


198  VALUE.  CCh.  6 

(if  I  lie  ])lnoo  of  performance,  the  rate  of  exchange  must  be  added  or 
subtracted.'^ 

Meixantile  Securities. 

A  contract  payable  in  mercantile  securities  is  in  effect  a  contract 
to  deliver  commodities;  and  the  damages  for  a  breach  is  the  actual, 
and  not  the  face,  value  of  the  securities.^® 

Alternntive  Medium. 

Where  the  parties  stipulate  for  an  alternative  medium  of  payment, 
the  least  beneficial  alternative  is  the  measure  of  damages  for  a 
breach.^' 

Contract  to  Pay  in  Connnodities. 

There  is  a  conflict  of  decisions  as  to  the  measure  of  damages  for 
breach  of  an  agreement  to  pay  a  certain  sum  in  commodities  at  a  cer- 
tain rate.  In  some  jurisdictions,  such  a  contract  is  construed  as  an 
agreement  to  deliver  commodities,  and  the  damages  for  a  breach 
is  the  value  of  the  articles  at  that  time.^*'     In  other  jurisdictions,  it 

Dam.  §  205.  A  contract  for  the  payment  of  foreign  gold  is  merely  a  con- 
tract for  a  commodity,  and  judgment  thereon  need  not  be  entered  in  gold. 
It  is  not  a  contract  for  the  payment  of  gold  dollars.  Sedg.  Dam.  §  274; 
Marburg  v.  Marburg,  2G  Md.  8;  Ladd  v.  Arliell,  40  N.  Y.  Super.  Ct.  150- 
Benners  v.  Clemens,  58  Pa.  St.  24.     Contra,  Stringer  v.  Coombs,  02  Me.  100. 

77  Stoiy,  Confl.  Laws,  §§  302,  308;  Sedg.  Dam.  §  275;  Lanusse  v.  Barker, 
3  Wheat.  101,  147;  Woodhull  v.  Wagner,  Baldw.  290,  302,  Fed.  Cas.  No. 
17,975;  Grant  v.  Healey,  3  Sumn.  523,  Fed.  Cas.  No.  5,090;  Smith  v.  Shaw, 
2  Wash.  C.  C.  107,  Fed.  Cas.  No.  13,107;  Cropper  v.  Nelson,  3  Wash.  C.  C. 
125,  Fed.  Cas.  No.  3,417;  Hargrove  v.  Creighton,  1  Woods,  489,  Fed.  Cas. 
No.  0,004;  Lee  v.  Wilcocks,  5  Serg.  &  R.  48.  In  New  York  and  Massachu- 
setts no  allowance  is  made  for  the  rate  of  exchange  between  the  place 
where  the  suit  is  brought  and  the  place  where  the  debt  is  payable.  Adams 
V.  Cordis,  8  Pick.  200;  Cary  v.  Courteney,  103  Mass.  310;  Martin  v.  Frank- 
lin, 4  Johns.  124;  Scofield  v.  Day,  20  Johns.  102.  See  Guiteman  v.  Davis. 
45  Barb.  570,  note;    Ladd  v.  Arkell,  40  N.  Y.  Super.  Ct.  150. 

78  Williams  v.  Sims,  22  Ala.  512;  Parks  v.  Marshall,  10  Ind.  20;  Jones  v. 
Chamberlain,  30  Vt.  190;  Moore  v.  Fleming,  34  Ala.  491;  Marr's  Adm'r  v, 
Prather,  3  Mete.  (Ky.)  190;  Williams  v.  Jones,  12  Ind.  501;  Pierce  v.  Spader, 
13  Ind.  458. 

79  Hixon  V.  Hixon,  7  Humph.  33.    See  ante,  p.  141. 

8  0  Price  V.  Justrobe,  Harp.  (S.  C.)  Ill;  Wilson  v.  George,  10  N.  H.  445; 
M'Donald  v.  Hodge,  5  Hayw.  (Tenn.)  85;  Meserve  v.  Ammidon,  109  Mass. 
415;     Rose  v.  Bozeman,  41  Ala.  078;    Davenport  v.  Wells,  1  Iowa,  598;    Cole 


§§    81-82)  MEDIUM    OF    PAYMENT LEGAL    TENDERS.  199 

is  held  that  such  a  contract  merely  gives  the  debtor  an  election  to 
pay  in  commodities  instead  of  in  money,  and  that  such  right  is 
waived  by  failure  to  exercise  it  at  the  time  agreed  upon,  and  there- 
after payment  must  be  made  in  money.^^  We  apprehend  that  the 
former  rule  is  more  consistent  with  the  principle  of  compensation. 

V.  Ross,  9  B.  Mon,  393;  Lyles  v.  Lyles'  Ex'rs,  6  Har.  &  J.  273;  Noonan  v. 
Ilsley,  17  Wis.  314. 

81  Gleason  v.  Pinney,  5  Cow.  152;  5  Wend.  393;  Brooks  v.  Hubbard,  3  Conn. 
58;  Perry  v.  Smith,  22  Vt.  301;  Trowbridge  v.  Holcomb,  4  Ohio  St.  38;  Short 
V.  Abernathy,  42  Tex.  94;  Cummings  v.  Dudley,  60  Cal.  383;  Heywood  v. 
Heywood.  42  Me.  229. 


200  EXEMl'LAHY    DAMAGES.  (Cll.   7 

CHAPTER  VII. 

EXEMPLARY   DAMAGES. 

83-84.    In  General. 
85-86.    When  Recoverable. 

87.    Liability  of  Principal  for  Act  of  Agent 

IN  GENERAL. 

83.  Exemplary,  punitive,  or  vindictive  damages  are  dam- 

ages awarded  in  addition  to  compensation  as  a  pun- 
ishment to  the  defendant,  and  as  a  warning  to  other 
w^rongdoers.* 

84.  The  authorities  are  in  great  conflict  as  to  whether  ex- 

emplary damages  can  ever  be  allowed. 

(a)  In  some  jurisdictions,  exemplary  damages  cannot  be 

recovered. 

(b)  In  a  few  jurisdictions,  exemplary  damages,  so  called, 

may  be  recovered,  but  they  are,  in  fact,  compensa- 
tory. 

(c)  In   most  jurisdictions,  exemplary   damages   may  be 

recovered  in  cases  of  aggravated  torts. 

Nature  and  Origin  of  the  Doctrine. 

It  is  now  a  well-established  principle  in  many  jurisdictions  that, 
in  actions  of  tort,  a  jury  may  inflict  what  are  called  exemplary,  puni- 
tive, or  vindictive  damages  upon  the  defendant,  having  in  view  the 
enormity  of  his  offense  rather  than  the  measure  of  compensation  to 
the  plaintiff.^  Upon  this  principle,  whenever  the  defendant,  in  com- 
mitting the  wrong  complained  of,  acted  recklessly,  or  willfully  and 
maliciously,  with  a  design  to  oppress  and  injure  the  plaintiff,  in  fix- 

•  Exemplary  damages  at  common  law  are  damages  inflicted  by  way  of  pun- 
ishment and  warning.    Mayer  v.  Frobe  (,W.  Va.)  22  S.  E.  58, 
1  Day  v.Woodworth,  13  How.  3G3,  371. 


§§   8o-S4)  IN   GENERAL.  201 

ing  the  damages,  the  jury  may  disregard  the  rule  of  compensation,  and 
award,  beyond  that,  an  additional  sum,  such  as,  in  their  discretion, 
they  deem  proper,  as  a  punishment  to  defendant  and  as  a  protection  to 
.society  against  a  violation  of  personal  rights  and  social  order.^  The 
rule  applies,  also,  in  actions  for  willful  injuries  to  property,  and  in  ac- 
tions of  tort  founded  on  negligence,  amounting  to  misconduct  or  reck- 
lessness. This  doctrine  has  been  repeatedly  attacked,  and  is  open  to 
objections  hard  to  answer.  It  is  undoubtedly  true  that  the  allow-ance 
of  anything  more  than  an  adequate  pecuniary  indemnity  for  a  wrong 
suffered  is  a  great  departure  from  the  principle  on  which  damages  in 
civil  suits  are  awarded.^  Even  Mr.  Sedgwick,  who  supported  the 
doctrine  in  a  controversy  with  Mr.  Greenleaf,  admits  "that  it  is 
an  exceptional  or  anomalous  doctrine,  at  variance  with  the  general 
rule  of  compensation;  hence  that,  logically,  it  is  wrong."  *  The  prin- 
ciple owes  its  origin  to  the  old  rule  that  the  jury  were  the  sole 
judges  of  the  damages.^  Then,  as  now,  when  a  wrong  was  accom- 
panied by  circumstances  of  aggravation,  the  jury  was  prone  to  re- 
turn a  verdict  for  large  damages,  which  the  court  was  powerless  to 
set  aside.  The  early  cases  amount  to  no  more  than  a  refusal  to  set 
aside  such  verdicts;  ®  but,  from  the  intemperate  language  sometimes 
used  by  the  judges  in  justifying  the  verdict,  the  doctrine  of  exem- 
plary damages  sprung  up,  well  characterized  as  "a  sort  of  hybrid  be- 
tween a  display  of  ethical  indignation,  and  the  imposition  of  a  crim- 
inal fine."  The  principle  was  also  confused  with  that  allowing  com- 
pensation for  mental  suffering;    the  circumstances  of  aggravation 

2  Voltz  V.  Blackmar,  U4  N.  Y.  440,  444. 

3  Milwaukee  &  St.  F.  Ky.  Co.  v.  Arms,  91  U.  S.  489. 
*  Sedgw.  Dam.  §  353. 

B  Sedgw.    Dam.    §   354. 

0  See  Huckle  v.  Money,  2  Wils.  Ii05,  and  concmTing  opinion  of  Batlnirst,  J.; 
Boardmore  v.  Carrington,  id.  244;  Grey  v.  Grant  (C  B.  Trin.,  4  Geo.  III.; 
Id.  2.52;  Sayer,  Dam.  227;'  Tullidge  v.  Wade,  3  Wils.  IS;  Merest  v.  Harvey, 
5  Taunt.  442;  Sears  v.  Lyons,  2  Starkie,  317;  Doe  v.  Filliter,  13  Mees.  &  W. 
47;  Rogers  v.  Spence,  Id.  071;  Merrills  v.  Munulacturing  Co.,  10  Conn.  384. 
In  these  cases  the  term  "actual  damage"  seems  to  be  conliiu'd  to  pecuniary 
losses.  The  idea  seems  to  be  that  reparation  for  mental  suIVeriug  (I.  e.  "sense 
of  wrong  or  insult")  could  only  be  made  by  way  of  punishment;  that  such 
injuries  could  not  be  compensated. 


202  EXEMPLARY    DAMAGES.  (Ch.   7 

which  would  justify  exemplary  damages  being  generally  such  a» 
would  naturally  cause  mental  suffering.^ 

It  was  said,  in  a  leading  case  in  New  Hampshire,*  that  the  mod- 
ern erroneous  idea  of  exemplary  damages  "originated  in,  and  is,  in 
fact,  the  same  thing  as,  damages  for  wounded  feelings,  as  distin- 
guished from  damages  for  an  injury  to  the  person  or  property. 
Damages  for  lacerated  sensibilities,  insulted  honor,  tyrannical  op- 
pression, etc.,  being  much  emphasized  and  often  being  the  principal 
damage  suffered  by  the  plaintiff,  and  language  being  loosely  used, 
and  not  preserving  the  true  distinction  carefully,  or  intemperately 
used  in  the  heat  of  indignation  which  judges  often  felt  and  could  not 
repress  while  contemplating  an  enormous  outrage,  it  finally  came  to 
be  understood  that  damages  might  be  given  in  a  civil  suit  as  a 
punishment  for  an  offense  against  the  public, — an  idea  that  is  cer- 
tainly not  plainly  declared  in  the  early  cases.  *  *  *  i  venture 
to  say  that  no  case  will  be  found  in  ancient — nor,  indeed,  in  modern 
— reports  in  which  a  judge  explicitly  told  a  jury  that  they  might, 
in  an  action  for  assault  and  battery,  give  the  plaintiff  four  damages, 
viz.:  (1)  For  loss  of  property,  as  for  injury  to  his  apparel,  loss  of 
labor  and  time,  expenses  of  surgical  assistance,  nursing,  etc.;  (2) 
for  bodily  pain;  (3)  for  mental  suffering;  and  (4)  for  punishment 
of  defendant's  crime.  But  a  critical  examination  of  the  cases  will 
show,  as  I  believe,  that  the  fourth  item  is,  in  fact,  comprehended  in 

7  "If  compensation  were  now  understood,  as  it  formerly  was,  to  be  made 
for  injuries  to  material  substance  only,  and  exemplary  damages  were  now  un- 
derstood, as  they  were  formerly,  to  refer  to  injuries  to  the  spiritual  or  mental 
part  of  human  nature,  there  would  be  no  trouble  or  difficulty  in  the  matter; 
but  in  progress  of  time  these  detinitious  have  changed.  Compensatory  dam- 
ages now  include  injuries  to  the  mental  and  spiritual  part  of  mankind;  and 
this  change  of  definition,  leaving  nothing  for  'exemplary  damages,'  as  for- 
merly understood,  to  operate  upon  and  be  applied  to,  Dy  a  very  natural  mis- 
take the  term  'exemplary'  has  been  supposed  to  refer  to  criminal  punishment 
for  the  sake  of  public  example,— an  idea  tbat  was  not  included  in  'exemplary 
damages',  as  formerly  understood."  Fay  v.  Parker,  53  N.  H.  342,  384.  Cf. 
Wiggin  V.  Coffin,  3  Story,  1,  Fed.  Cas.  No.  17,024;  King  v.  Root,  4  Wend.  113, 
139;  Cook  v.  Ellis,  6  Hill,  4UU;  Buir  v.  Burr,  7  Hill,  207,  217;  Kendall  v. 
Stone,  2  Sandf.  2G9;  Stimpson  v.  Kailroads,  1  Wall.  Jr.  1G4,  170,  Fed.  Cas.  No. 
13,450;  Grable  v.  Margrave,  3  Scam.  373;  Johnson  v.  Weedman,  4  Scam.  495; 
McNamara  v.  King,  2  Gilman,  432;   Day  v.  Wood  worth,  13  How.  303,  371. 

8  Fay  V.  Parker,  53  N.  H.  342,  380. 


§§    83-84)  IN    GENERAL.  203 

the  third,  but  has  grown  into  and  become  a  separate  and  additional 
item,  by  inconsiderate,  if  not  intemperate  and  angry,  instructions, 
giA'en  to  juries  when  the  court  was  too  much  incensed  by  the  exhibi- 
tion of  wanton  malice,  revenge,  insult,  and  oppression,  to  weigh  with 
coolness  and  deliberation  the  meaning  of  language  used  by  other 
judges." 

Criticism  of  the  Doctrine. 

In  giving  the  elements  of  damages  Mr.  Sedgwick  distinguishes  be- 
tween ''the  mental  suffering  produced  by  the  act  or  omission  In 
question;  vexation;  anxiety," — which  he  holds  to  be  grounds  for 
compensatory  damages, — and  "the  sense  of  wrong  or  insult  in  the 
sufferer's  breast,  from  an  act  dictated  by  a  spirit  of  willful  injus- 
tice, or  by  a  deliberate  intention  to  vex,  degrade,  or  insult," — which 
he  holds  to  be  ground  for  exemplary  damages  only.^  He  maintains 
that  the  rule  in  favor  of  exemplary  damages  blends  together  the 
interests  of  society  and  the  aggrieved  individual,  and  gives  damages, 
not  only  to  recompense  the  sufferer,  but  to  punish  the  offender, 
and  that  exemplary  damages  are  in  addition  to  actual  damages.^  ^ 
We  need  add  no  authority  to  Mr.  Sedgwick's,  that,  in  actions  for 
personal  torts,  mental  suffering,  vexation,  and  anxiety  are  subjects 
for  compensation  in  damages;  and  it  is  difficult  to  see  any  distinc- 
tion between  these  and  the  sense  of  wrong  and  insult  arising  from 
injustice  and  intention  to  vex  and  degrade.^ ^  The  appearance  of 
malicious  intent  may  add  to  the  sense  of  wrong;  and  equally  whetli- 
er  such  intent  be  really  there  or  not.     But  that  goes  to  mental  suf- 

9  Sedgw.  Dam.  §§  37,  347. 

11  "Damagies  for  wounded  feelings  are  compensatory  in  their  nature.  ♦  ♦  * 
Exemplary  damages  are  given  because  of  tlie  motive  of  the  defendant,  and  it 
is  well  settled  that  when  they  are  allowed  it  is  in  addition  to  compensatory 
damages  for  either  physical  or  mental  suffering."  Sedgw.  Dam.  §  357;  Har- 
rison V.  Ely,  120  111.  83,  11  N.  E.  334;  Parkhurst  v.  Masteller,  57  Iowa,  474, 
10  N.  W.  8G4;  Root  v.  Sturdivant,  70  Iowa,  55,  29  N,  W.  802;  Haines  v, 
Schultz,  50  N.  J.  Law,  481,  14  Ati,  488,  Hamilton  v  Railroad  Co.,  35  N.  Y. 
Super.  Ct.  118;    Croker  v.  Railway  Co..  3(i  Wis.  G57. 

12  In  assessing  damages  for  an  assault  and  battery,  the  jury  may  consider, 
as  an  aggravation  of  the  tort,  the  mental  suffering  of  the  plaintiff  from  tho 
insult  and  indignity  of  defendant's  blows.  Smith  v.  Ildlcoml),  !•;•  M.-ish.  552. 
Sec,  also,  Brown  v.  Swlueforil.  44  Wis.  282.  281). 


20  i 


EXEMPLARY   DAMAGES.  (Ch.  7 


fei'ing.  and  mental  suffering  to  compensation."  It  has  been  thouglit 
that  ihis  is  a  mere  verbal  criticism, — a  controversy  as  to  the  ter- 
minology of  the  law  rather  than  as  to  the  extent  of  the  right  of  re- 
covery, or  real  measure  of  damages;  that  what  is  given  in  some 
jurisdictions  as  exemplary  damages  is  recovered  in  others  as  com- 
pensation for  mental  suffering,  i.  e.  "the  sense  of  wrong  and  insult."  ^* 
This  would  be  true  if  the  question  were  simply  whether  certain  ele- 
ments of  damage  are  to  be  regarded  as  compensatory  or  exemplary, 
the  plaintiff  in  either  event  getting  the  advantage  of  them;  but  it 
manifestly  becomes  a  matter  of  more  than  verbal  consequence  if  the 
plaintiff  is  to  receive  and  the  defendant  is  to  pay  for  the  same  ele- 
ments of  injury  and  damage  twice, — once  as  compensatory,  and 
again  as  exemplary.  A  fortiori,  it  is  of  more  than  verbal  conse- 
quence if  the  defendant  is  required  to  pay  for  the  same  thing  a  third 
time,  by  a  fine,  for  the  benefit  of  the  public.  It  is  of  no  consequence 
\^•hether  damages  given  for  insult  and  oppression  are  called  "ex- 
emplary" or  "compensatory,"  until  fiindamental  constitutional  rights 
are  imperiled  and  overthrown  by  a  misconception  of  the  meaning 
of  words.  Then  it  becomes  high  time  to  express  ideas  in  language 
that  cannot  be  misunderstood.^^ 

TMiere  the  wrong  is  at  once  a  tort  and  a  crime,  there  are  still 
graver  objections  to  the  doctrine.^°  Exemplary  damages,  in  addi- 
tion to  full  compensation  for  the  injury  suffered,  subject  the  wrong- 
doer to  punishment  twice  for  the  same  offense;  and,  moreover,  while 
the  statute  limits  the  pecuniary  fine  upon  a  criminal  prosecution 
for  such  an  act,  there  is  but  a  vague  limit  to  the  exempkiry  dam- 
ages which  a  jury  may  find  in  a  civil  action.  It  certainly  appears 
to  be  an  incongruity  that  one  may  be  punished  by  the  jjublic,  for  the 

1 3  Craker  v.  Railway  Co.,  36  Wis.  G57. 

14  Sedgw.  Dam.  §§  347,  354. 

15  Fay  V.  Parker.  53  N.  H.  342. 

iG  "To  punisli  a  defendant  civilly,  by  fine,  is  to  violate  not  only  the  constitu- 
tional immunity,  and  also  the  synonymous  maxim  of  the  common  law,  'Nemo 
debet  bis  puniri,'  but  also  the  other  maxim  (also  synonymous),  'Xemo  debet  bis 
vexari  pro  una  et  eadem  causa.'  *  *  *  This  privilege  is  secured  to  every 
American  citizen,  as  firmly  as  the  inalienable  rights  of  life,  liberty,  or  the  pur- 
suit of  happiness,  namely,  he  shall  not  be  liable  to  be  tried  after  an  acquittal. 
nor  twice  vexed,  nor  twice  punished,  nor  twice  tried,  nor  twice  put  in  jeop- 
ardy."   Fay  V.  Parker,  53  N.  H.  342,  388,. 3SU. 


§§    So-S4)  IN    GENERAL.  205' 

crime,  upon  a  criminal  prosecution,  by  a  fine  limited  by  statute,  and 
again  punished  in  favor  of  the  sufferer,  but  in  right  of  the  public, 
for  the  same  act,  by  exemplary  damages,  with  little  limit  but  the  dis- 
cretion of  the  jury.  This  is  but  another  illustration  of  what  appears 
to  be  the  incongruity  of  the  entire  rule  of  exemplary  damages,^'' 

When  all  is  said,  it  must  be  admitted  that  the  doctrine  of  ex- 
emplary damages  is  anomalous  and  illogical.  "It  has  been  suffered 
to  lean  upon  and  support  itself  by  the  supposed  weight  of  author- 
ity rather  than  to  stand  upon  principle  and  inherent  strength."^® 
The  fact  remains,  however,  that  in  a  vast  body  of  decisions  dam- 
ages have  been  allowed  strictly  in  poenam.  The  doctrine  of  these 
cases  is  to  be  sustained,  if  at  all,  mainly  on  the  ground  of  au- 
thority.^* 

Jurisdidiom  in  Which  Exemplary  Damages  Cannot  he  Recovered. 

In  some  jurisdictions  the  entire  doctrine  of  exemplary  damages 
is  repudiated.  Full  compensation  for  all  the  elements  of  damage 
suffered,  including  mental  suffering,  i.  e,  "sense  of  wrong  and  in- 
sult," is  the  measure  and  limit  of  recovery.  Thus  Cooley,  C.  J., 
said,  in  a  leading  Michigan  case:-"  "The  purpose  of  an  action  for 
tort  is  to  recover  the  damages  which  the  plaintiff  has  sustained  from 
an  injury  done  him  by  the  defendant.  In  some  cases  the  damages 
are  incapable  of  pecuniary  estimation,  and  the  court  performs  its 
duty  in  submitting  all  the  facts  to  the  jury,  and  leaving  them  to 
estimate  the  plaintiff's  damages  as  best  they  may  under  all  the 
circumstances.  In  other  cases  there  may  be  a  partial  estimate  of 
damages  by  a  money  standard,  but  the  invasion  of  the  plaintiff's 
rights  has  been  accompanied  by  circumstances  of  peculiar  aggrava- 
tion, which  are  calculated  to  vex  and  annoy  the  plaintiff,  and  cause 
him  to  suffer  much  beyond  what  he  would  suffer  from  the  pecuniary 
loss.  Here  it  is  manifestly  proper  that  the  jury  should  estimate 
the  damages  with  the  aggravating  circumstances  in  mind,  and  that 
they  should  endeavor  fairly  to  compensate  the  plaintiff  for  the  wrong 
he  has  suffered.     But  in  all  cases  it  is  to  be  distinctly  borne  in  mind 

IT  Brown  v.  Swineford,  44   Wis.  2S5. 

18  Field,  Dam,  p.   7'J. 

19  Sodfjw.  Uam.  §  ?>7A. 

'0  Slilson  V.  Gibbs,  ->?.  Mich.  280,  18  N.  W.  81.^>.  Sec,  also,  Wilson  v.  Unwcn 
64  Mich.  i:W.  :',1  N.  W.  81. 


206  EXEMPLARY    DAMAGES.  (Cll.   7 

that  compensation  to  the  plaintiff  is  the  purpose  in  view,  and  any 
instruction  which  is  calculated  to  lead  them  to  suppose  that,  be- 
sides compensating  the  plaintiff,  they  may  punish  the  defendant, 
is  erroneous."  In  this  case,  the  instruction  complained  of  author- 
ized the  jury,  after  estimating  the  actual  damages  of  the  plaintiff, 
to  go  further  and  give  an  additional  sum,  limited  only  by  their  dis- 
cretion, by  way  of  punishment  and  example,  and  for  that  reason  was 
held  erroneous.  The  rule  is  the  same  in  Massachusetts,  where  it  is 
held  ^^  that  the  ''manner  and  manifest  motive"  of  a  tort  may  be 
shown  in  proof  of  mental  suffering.  Exemplary  damages  have  been 
denied  in  other  jurisdictions.^^ 

Jurisdictions  Where  Exemplary  Damages  are  Oompensatory. 

In  West  Virginia  the  doctrine  that,  in  a  civil  case,  punitive,  vin- 
dictive, or  exemplary  damages  can  be  imposed  as  a  mere  punish- 
ment to  the  defendant,  was  originally  repudiated,^ ^  and  it  was  held, 
upon  a  review  of  the  cases,  that  the  term  "exemplary  damages," 
when  properly  used,  meant  merely  compensation  for  mental  suffer- 
ing, and  not  additional  damages  given  as  a  punishment.-*  Dam- 
ages called  "exemplary"  were  held  recoverable,  but  they  were  dis- 
tinctly held  to  be  compensatory.  These  cases  have  been  recently 
overruled  in  an  elaborate  opinion  which  relies  principally  upon 
Scriptural  authority.*  The  original  West  Virginia  doctrine  is  main- 
tained in  a  few  jurisdictions.-^  In  Texas,  under  the  name  of  "ex- 
emplary damages,"  compensation  may  be  recovered  for  items  of  dam- 
age which  would  ordinarily  be  excluded  as  remote;  but  it  seems 
that  damages  cannot  be  given  as  a  punishment.^ ^ 

21  Hawes  v.  Knowles.  114  Mass.  518. 

2  2  Murphy  V.  Hobbs,  7  Colo.  541,  5  Pac.  119;  Greeley,  S.  L.  &  P.  Ry.  Co.  v. 
Yeager,  11  Colo.  345,  18  Pac.  211;  Riew^  v.  MeCormick,  11  Neb.  261,  9  N.  W. 
88;   Fay  v.  Parker,  53  N.  H.  342;   Bixby  v.  Dunlap,  56  N.  H.  456. 

23  Beclj  v.  Thompson,  31  W.  Va.  4-59,  7  S.  E.  447. 

2  4  Pegram  v.  Stortz,  31  W.  Va.  220,  6  S.  E.  4S5. 

*  Mayer  v.  Frobe  (W.  Va.)  22  S.  E.  58. 

2  5  Quigley  V,  Railroad  Co.,  11  Nev.  350;  Union  Pac.  R.  Co.  v.  Hause,  1 
Wye.  27. 

26  Biering  v.  Bank,  69  Tex.  .399,  7  S.  W.  90;  International  &  G.  N.  R.  Co.  v. 
Telephone  &  Tel.  Co.,  69  Tex.  277,  5  S.  W.  517.  In  some  jurisdictions  the  ex- 
penses of  litigation  may  be  considered  in  assessing  exemplary  damages.  Mar- 
shall Y.   Betner,   17  Ala.   833;     Patton  v.   Garrett,   37  Ark.   605;    Huntlev  v. 


§§    85-S6)  WHEN    RECOVERABLE.  207 


WHEN  RECOVERABLE. 

85.  In    jurisdictions    \rliere    exemplary   damages    are    al- 

lowed, they  can   be   recovered  only  in   actions    of 
tort,  and  when  the  tort  is  accompanied  by  violence, 
oppression,  gross  negligence,  malice,  or  fraud. 
EXCEPTIONS — (a)  Exemplary  damages  may  be  recov- 
ered for  breach  of  promise  of  marriage  (p.  213). 

(b)  In  a  few  states  exemplary  damages  may  be   recov- 

ered in  an  action  on  a  statutory  bond,  where  the 
breach  of  condition  was  a  tort  (p.  213). 

(c)  In  some  jurisdictions,  exemplary  damages  cannot  be 

recovered  where  the  tort  is  also  a  crime  (p.  215). 

86.  Liability  to  exemplary  damages  does  not  survive. 

In  most  jurisdictions  the  doctrine  has  become  firmly  established 
that  exemplary  damages,  in  addition  to  compensation  for  the  loss 
actually  suifered,  may  be  awarded  as  a  punishment  to  defendant, 
and  as  a  warning  to  others.^^     But  a  civil  action  does  not  lie  merely 

Bacon,  15  Conn.  267;  Beecher  v.  Ferry  Co.,  24  Conn.  491;  Dalton  v.  Beers,  3S 
Conn.  529;  Bennett  v.  Gibbons,  55  Conn.  450,  12  Atl.  99;  Wynne  v.  Parsons. 
57  Conn.  73,  17  Atl.  362;  Titus  v.  Corkins,  21  Kan.  722;  Winstead  v.  Hulme, 
32  Kan.  5GS,  4  Pac.  994;  Eatinun  v.  Railway  Co.,  35  La.  Ann.  lOlS;  Xortli- 
ern,  J.  &  G.  N.  R.  R.  Co.  v.  Allbritton,  38  Miss.  243;  Roberts  v.  Mason,  10  Ohio 
St.  277;  Finney  v.  Smith,  31  Ohio  St.  529;  Stevenson  v.  Morris,  37  Ohio  St. 
10;  Peckham  Iron  Co.  v.  Harper,  41  Ohio  St.  100.  See  ante,  p.  — .  Contra. 
Hoadley  v.  Watson,  45  Vt.  289. 

27  Emblen  v.  Myers,  6  Hurl.  &  N.  54;  Bell  v.  Railway  Co.,  4  Law  T.  (N.  S.) 
293;  Day  v.  Woodworth,  13  How.  363;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Arms, 
91  U.  S.  489;  Missouri  Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512,  6  Sup.  Ct.  110; 
Denver  &  R.  G.  Ry.  Co.  v.  Harris,  122  U.  S.  597,  7  Sup.  Ct.  1286;  Browu  v. 
Evans,  8  Sawy.  488,  17  Fed.  912;  U.  S.  v.  Taylor,  35  Fed.  484;  Jefferson  Co. 
Sav.  Bank  v.  Eborn,  84  Ala.  529,  4  South.  38(j;  Clark  v.  Bales,  15  Ark.  452; 
Citizens'  St.  Ry.  Co.  v.  Steen,  42  Ark.  321;  St.  Ores  v.  McGlasheu,  74  C.nl. 
148,  15  Pac.  452;  Bundy  v.  Maginess,  76  Cal.  532,  18  Pac.  668;  Liusloy  v. 
Bushnell,  15  Conn.  225;  Dalton  v.  Beers,  38  Conn.  529;  Robinson  v.  Burton.  5 
Har.  (Del.)  335;  Coleman  v.  Allen,  79  Ga.  637,  5  S.  E.  204;  Harrison  v.  Ely, 
120  111.  83,  11  N.  E.  3.34;  Binlord  v.  Youn^',  115  Ind.  174.  16  N.  E.  1  12;  Park- 
hurst  v.  Masteller,  57  Iowa,  474,  lU  .\.  W.  864;    Root  v.  Sturdivant,  70  lown. 


20S  EXKMPLAKY    DAMAGICS..  (Cll.   7' 

to  inflict  punishment.  A  cause  of  action  must  exist  independently 
of  tlio  claim  for  exemplary  damages.  In  other  words,  where  dam- 
ages are  the  gist  of  an  action,  proof  of  aggravating  circumstances, 
such  as  would  ordinarily  justify  the  infliction  of  exemplary  dam- 
ages, is  alone  insufficient  to  maintain  the  action.  Some  actual  loss 
must  be  proved,^*  Where  a  wrongdoer  dies  before  trial,  only  com- 
pensatory damages  can  be  recovered  against  his  estate.  The  lia- 
bility  to   exemplary   damages   does   not   survive.^"     In   an   action" 

55,  129  N.  W.  S02;  Kedfleld  v.  Kedfleld,  75  Iowa,  435,  39  N.  W.  OSS;  Thill  v, 
rohlman,  76  Iowa,  038.  41  N.  W.  385;  Wheeler  &  Wilson  Manuf'g  Co.  v. 
Boyce,  36  Kan.  350,  13  Pac.  609;  Louisville  &  N.  R.  Co.  v.  Ballard.  85  Ky. 
307,  3  S.  W.  530;  Pike  v.  Billing,  4S  Me.  539;  Webb  v.  Oilman,  80  Me.  177,  13- 
Atl.  6SS;  Baltimore  &  Y.  Turnpike  v.  Boone,  45  Md.  344;  Philadelphia,  W.  &,  B. 
R.  Co.  V.  Larkin,  47  Md.  155;  McPherson  v.  Ryan,  59  Mich.  33,  26  N.  W.  321  ^ 
Ross  V.  Leggett,  61  Mich.  445,  28  N.  W.  695;  Newman  v.  Stein,  75  Mich.  402, 
42  X.  W.  956.  Contra,  Stilson  v.  Gibbs,  53  Mich.  280,  IS  N.  W.  815;  Wilson 
V.  Bo  wen,  64  Mich.  133,  31  N.  W.  81;  McCarthy  v.  Niskern,  22  Minn.  90  p 
Peck  V.  Small,  35  Minn.  465,  29  N.  W.  69;  Vieksburg  &  M.  R.  Co.  v.  Scaulan,. 
63  Miss.  413;  Higgius  v.  Railroad  Co.,  64  Miss.  80,  8  South.  176;  Buckley  v, 
Knapp,  48  Mo.  152;  Joice  v.  Branson,  li  Mo.  28;  Bohm  v.  Dunphy,  1  Mont. 
333;  Magee  v.  Holland,  27  N.  J.  Law,  86;  Plaines  v.  Schultz,  50  N.  J.  Law^ 
481,  14  Atl.  488;  Bergmann  v.  Jones,  94  N.  Y.  51;  Johnson  v.  Allen,  100  N.  C. 
131,  5  S.  E.  606;  Bowden  v.  Bailes,  101  N.  C.  612,  8  S.  E.  342;  Knowles  v. 
Railroad  Co.,  102  N.  C.  59,  9  S.  E.  7;  Atlantic  &  G.  W.  Ry.  Co.  v.  Dunn,  19- 
Ohio  St.  162;  Hayner  v.  Cowden,  27  Ohio  St.  292;  Lake  Shore  &  M.  S.  Ry. 
Co.  V.  Rosenzweig,  113  Pa.  St.  519,  6  Atl.  545;  Philadelphia  Traction  Co.  v, 
Orbann,  119  Pa.  St.  37,  12  Atl.  816;  Kenyon  v.  Cameron,  17  R.  I.  122,  20  AtL 
233;  Quinu  v.  Railway  Co.,  29  S.  C.  381,  7  S.  E.  014;  Polk  v.  Fancher,  1  Head> 
(Tenn.)  336;  Jones  v.  Turpin,  6  Heisk.  (Tenn.)  181;  Cox  v.  Crumley,  5  Lea 
(Tenn.)  529;  Louisville,  N.  &  G.  S.  R.  Co  v.  Guinan,  11  Lea  (Tenn.)  98;  Rea 
V.  Harrington,  58  Yt.  181,  2  Atl.  475;  Camp  v.  Camp,  59  Vt.  667,  10  Atl.  748;. 
Borland  v.  Barrett,  76  Va.  128;  Harman  v.  Cuudiif,  82  Va.  239;  McWilliams- 
V.  Bragg,  3  Wis.  424;  Spear  v.  Hiles,  67  Wis.  350,  30  N.  W.  506;  Sullivan  v. 
Navigation  Co.,  12  Or.  392,  7  Pac.  508;  Heneky  v.  Smith,  10  Or.  349;  Day  v. 
Holland,  15  Or.  464,  15  Pac.  855.  The  estate  of  a  lunatic  is  not  liable  for  ex- 
emplary damages.     Mclntyre  v.  Sholty,  121  111.  660,  13  N.  E.  239. 

2  8  Meidel  v.  Anthis,  71  111.  241;  Schippel  v.  Norton,  38  Kan.  507,  16  Pac. 
804;  Stacy  v.  Publishing  Co.,  OS  :Me.  279;  Ganssly  v.  Perkins,  30  Mich.  492; 
Robinson  v.  Goings,  63  Miss.  500;  Jones  v.  Matthews,  75  Tex.  1,  12  S.  W.  823. 
A  right  to  recover  nominal  damages  is  sufficient  to  sustain  a  verdict  for  ex- 
emplary damages.    Wilson  v.  Vaughn,  23  Fed.  229;  Hefley  v.  Baker,  19  Kan.  9, 

29  Edwards   v.    Ricks,   30   La.   Ann.   920;     Rippey    v.    Miller,    11    Ired.   247; 


§§    8o-8G)  WIIi:\    RECOVERABLE.  209 

against  joint  wronodoers,  the  bad  motives  of  some  of  the  defendants 
will  not  be  imputed  to  the  others,  and  therefore  exemplary  dam- 
ages cannot  be  recovered  unless  all  of  the  defendants  acted  so  as 
to  become  liable  therefor.^"  The  plaintiff  has  an  election  to  sue 
joint  tort  feasors,  either  jointly  or  severally.  By  suing  them  jointly, 
he  waives  any  claim  for  exemplary  damages,  unless  all  acted  from 
bad  motives.^ ^  In  such  a  case,  the  measure  of  damage  is  the  actual 
loss  sustained  from  the  joint  wrong.  To  recover  exemplary  dam- 
ages, the  suit  should  be  against  the  party  who  alone  acted  so  as  to 
incur  the  liability.^^  "It  would  be  very  unjust  to  make  the  malig- 
nant motive  of  one  party  a  ground  of  aggravation  of  damage  against 
Ihe  other  party,  who  was  altogether  free  from  any  improper  motive. 
In  such  case,  the  plaintiff  ought  to  select  the  party  against  whom  he 
means  to  get  the  aggravated  damages."  ^^  Where  the  plaintiff  has 
no  election,  but  must  join  all  the  defendants,  exemplary  damages 
are  not  waived.  Thus,  where  husband  and  wife  must  be  sued  joint- 
ly for  a  tort  of  the  wife,  judgment  for  exemplary  damages  may  be 
given  against  both.'* 

Exemplary  damages,  being  designed  to  punish  the  wrongdoer,  can 
be  justified  only  where  the  wrong  was  willful  or  wanton,  and  their 
allowance  is  limited  to  that  class  of  cases.^^     Actual  malice,'"'  wan- 

Wriffht  V.  Donnell,  34  Tex.  201.  Vindictive  damages  are  awarded  as  a  inm- 
islimont  against  a  wrongdoer,  and  not  as  compensation  for  the  injured  person. 
Therefore  thej-  cannot  be  given  in  an  action  against  personal  representatives  of 
a  decedent  on  account  of  the  wrong  of  decedent.  Sheik  v.  Hobson,  (i4  Iowa. 
146,   19  N.  W.  S75. 

30  Suth.  Dam.  §  407. 

31  McCartliy  v.  De  Armit,  99  Pa.  St.  63.  It  was  held  that  damages  should 
be  assessed  against  the  least  culpable  defendant,  and,  unless  all  the  defend- 
ants were  liable  for  exemplary  damages,  none  could  be  recovered. 

3  2  Becker  v.  Dupree,  75  111.  167. 

3  3  Dark  v.  Nowsam.  1  Exch.  131. 

34  Munter  v.  Bande,  1  Mo.  App.  484;  I.omljard  v.  Batchclder,  .")S  Vt.  Tt'tS,  ~) 
Atl.  .",11.     See  3  Suth.  Dam.  c.  2(;. 

■■•■■-  Keedcr  v.  Purdy,  4S  111.  261;  l':ii  well  v.  Warren,  To  III.  2S;  Tohvlo,  W.  &; 
W.  Ily.  Co.  V.  Iloberts,  71  111.  510;  .Miller  v.  Kirby,  74  111.  212;  Scolt  v.  Hryson, 
Id.  420;  Becker  v.  Dupree,  75  111.  167;  Moore  v.  (Jrose,  4:5  Ind.  3(t;  Hniwii  v. 
Alien,  .'55  Iowa,  ."'.06;  Tyson  v.  Kwing,  3  .1.  J.  Marsh.  1S5;  Kljidlt  v.  lleiz.  29 
Mich.  202;    Jockers  v.  I'.nrgman,  29  Kan.  109;    Dnw  v.  .lulien,  .'!2   K.iii.  r.76,  4 


30  See  note  36  on  roliouing  page. 

LAW  DAM.        I  1 


210  EXEMPLARY    DAMAGES.  (Ch.   7 

tonness,"  oppression,  brutality,  insult,^^  fraud,^°  or  gross  negli- 
gence *"  are  suflicient  to  justify  the  allowance  of  exemplary  dam- 

Piu-.  1000;  Wanamaker  v.  Bowes,  3G  Md.  42.  Lack  of  reasonable  grounds  for 
believing  allegations  made  to  procure  an  attachment  will  not  justify  exemplary 
damages.  Nordhaus  v.  Peterson,  54  Iowa,  G8,  6  N.  W.  77.  Exemplary  dam- 
ages cannot  be  recovered  for  accidental  or  unintentional  injuries.  Walker  v. 
Fuller,  29  Ark.  448;  Tiipp  v.  Grouner,  60  111.  474;  AValler  v.  Waller,  7U  Iowa, 
513,  41  N.  W.  307;  Jackson  v.  Schmidt,  14  La.  Ann.  818;  Blodgett  v.  Brattle- 
boro,  30  Vt.  579;  U.  S.  v.  Taylor,  35  Fed.  484;  Ames  v.  Hilton,  70  Me.  3G; 
Sapp  v.  Railway  Co.,  51  Md.  115.  An  idiot  is  not  liable  for  exemplary  dam- 
ages.   Mclntyre  v.  Shelly,  121  111.  660,  13  N.  E.  239. 

36  Ralston  v.  The  State  Rights,  Crabbe,  22,  Fed.  Cas.  No.  11,540;  Dibble  v. 
Morris,  26  Conn.  416;  Kilbourn  v.  Thompson,  1  McA.  &  M.  401;  Sherman  v. 
Dutch,  16  111.  283;  Moore  v.  Crose,  43  Ind.  30;  Louisville  &  N.  R.  Co.  v.  Bal- 
lard, 85  Ky.  307,  3  S.  W.  530;  Webb  v.  Oilman,  80  Me.  177,  13  Atl.  688;  Joice 
v.  Branson,  73  Mo.  28;  Sowers  v.  Sowers,  87  N.  C.  303;  Philadelphia  Traction 
Co.  V.  Orbann,  119  Pa.  St.  37,  12  Atl.  816;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v. 
Lyon,  123  Pa.  St.  140,  16  Atl.  607. 

87  Goetz  V.  Ambs,  27  Mo.  28;  Green  v.  Craig,  47  Mo.  90;  Borland  v.  Barrett, 

76  Va.  128.  See,  also,  cases  cited  in  note  36,  supra.  Wantonness  means  reck- 
less disregard  of  consequences.  President,  etc.,  of  Baltimore  &  Y.  T.  R.  Co.  v. 
Boone,  45  Md.  344;   Louisville  &  N.  R.  Co.  v.  Ballard,  85  Ky.  307,  3  S.  W.  530. 

3  8  Reeder  v.  Purdy,  48  111.  261;  Cutler  v.  Smith,  57  111.  252;  Smith  v.  Wun- 
derlich,  70  111.  426;  Drohn  v.  Brewer,  77  111.  280;  Moore  v.  Crose,  43  Ind.  30; 
Jennings  v.  Maddox,  8  B.  Mon.  430;  Louisville  &  N.  R.  Co.  v.  Ballard,  85  Ky. 
307,  3  S.  W.  530;  Webb  v.  Oilman,  80  Me.  177,  13  Atl.  688;  Raynor  v.  Xims, 
37  Mich.  34;  Joice  v.  Branson,  73  Mo.  28;  Bowden  v.  Bailes,  101  N.  C.  612, 
8  S.  E.  342;  Philadelphia  Traction  Co.  v.  Orbaun,  119  Pa.  St.  37,  12  Atl.  816; 
Redfield  v.  Redfield,  75  Iowa,  435,  39  N.  W.  688.  Abuse  of  process  is  sufficient 
ground.  Iluclde  v.  Money,  2  Wils.  205;  Nightingale  v.  Scannell,  18  Cal.  315; 
Louder  v.  Hiusou,  4  Jones  (N.  C.)  369;  Rodgers  v.  Ferguson,  36  Tex.  544; 
Shaw  V.  Brown,  41  Tex.  446.  So  also  is  willful  refusal  to  perform  official  duty. 
Wilson  V.  Vaughn,  23  Fed.  229;  Elbin  v.  Wilson,  33  Md.  135.  A  passenger 
rudely  and  wrongfully  expelled  from  a  train  may  recover  exemplary  damages, 
Philadelphia  W.  &  B.  R.  Co.  v.  Larkin,  47  Md.  155;  Knowles  v.  Railroad  Co., 
102  N.  C.  59,  9  S.  E,  7;  but  not  where  the  conductor  acted  honestly,  and  there 
were  no  aggravating  circumstances,  Fitzgerald  v.  Railroad  Co.,  50  Iowa,  79; 
Philadelphia,  W,  &  B.  R.  Co.  v.  Larkin,  47  Md.  155;  Knowles  v.  Railroad  Co., 

77  Mo.  663;  Hamilton  v.  Railroad  Co.,  53  N.  Y.  25;  Yates  v.  Railroad  Co.,  67 
N.  Y.  100;   Tomlinson  v.  Railroad  Co.,  107  N.  C.  327,  12  S.  E.  138. 

88  Sedgw.  Dam.  §  367.     See  Louisville  &  N.  R.  Co.  v.  Ballard,  85  Ky.  307,  3 
S.  W.  530.     Contra,  Singleton  v.  Kennedy,  9  B.  Mon.  222,  226. 
*o  Emblen  v.  Myers,  6  Hurl.  &  N.  54;    U.  S.  v.  Taylor,  35  Fed.  484;    Mo 


§§    85-86)  WHEN    RECOVERABLl-:.  211 

ages.  Good  faith  *^  and  provocation  *^  may  be  shown  in  mitigation 
of  damages.  Evidence  of  defendant's  wealth  or  poverty  is  admissi- 
ble; *^  for  what  would  be  a  heavy  punishment  for  a  poor  man  might 
be  no  punishment  at  all  for  a  rich  one,  and  vice  versa. 

bile  &  M.  R.  Co.  v.  Ashcraft,  48  Ala.  15;  Lienkauf  v.  Morris.  66  Ala.  406; 
Citizens'  St.  Ry.  Co.  v.  Steeu,  42  Ark.  321;  W.  U.  Tel.  Co.  v.  Eyser,  2  Colo. 
141;  Linsley  v.  Busbnell,  15  Conn.  225;  Kilbourn  v.  Thompson,  1  McA.  & 
M.  401;  Frink  v.  Coe,  4  Greene  (Iowa)  555;  Cochran  v.  Miller,  13  Iowa, 
12S;  Bowler  v.  Lane,  3  Mete.  (Ky.)  311;  Fleet  v.  Holleukemp,  13  B.  Mon. 
219;  Kountz  v.  Brown,  10  B.  Mon.  577;  Wilkinson  v.  Drew,  75  Me.  300; 
Vicksburg  &  J.  R.  Co.  v.  Patton,  31  Miss.  156;  Memphis  &  C.  R.  Co.  v. 
Whitfield,  44  Miss.  406;  Hopkins  v.  Railroad  Co.,  36  N.  H.  9;  Taylor  v. 
Railway  Co.,  48  2s.  H.  301;  Caldwell  v.  Steamboat  Co.,  47  N.  Y.  282;  Pitts- 
burgh, C.  &  St.  L.  Ry.  Co.  v.  Lyon,  123  Pa.  St.  140,  16  Atl.  607;  Byram  v. 
McGuire,  3  Head,  530;  Kolb  v.  Bankhead,  18  Tex.  228;  Yerian  v.  Linklet- 
ter,  80  Cal.  135,  22  Pac.  70. 

41  Where  defendant  acted  in  good  faith,  he  is  not  liable  to  exemplary  dam- 
ages, St.  Peters  Church  v.  Beach,  26  Conn.  355;  Oursler  v.  Railroad  Co., 
60  Md.  358;  Millard  v.  Brown,  35  N.  Y.  297;  Bennett  v.  Smith,  23  Hun,  50; 
Tracy  v.  Swartwout,  10  Pet.  80;  Plummer  v.  Harbut,  5  Iowa,  308;  Pierce 
V.  Getchell,  76  Me.  216;  Pratt  v.  Pond,  42  Conn.  318;  Nightingale  v.  Scan- 
nell,  18  Cal.  315;  unless  he  acted  in  a  cruel  and  abusive  manner.  Dalton 
V.  Beers,  38  Conn.  529.  Sec,  also,  Johnson  v.  Camp,  51  111.  219;  Bauer  v. 
Gottmanhausen,  65  111.  499;  Jasper  v.  Purnell,  67  111.  358;  Raynor  v.  Nims,  37 
Mich.  34.  Where  defendant  acted  on  advice  of  counsel,  exemplary  damages 
cannot  be  recovered.  City  Nat.  Bank  v.  Jeffries,  73  Ala.  183;  Cochrane  v.  Tut- 
tle,  75  111.  361;  Murphy  v.  Larson,  77  111.  172;  Livingston  v.  Burroughs,  33 
Mich.  511;  Carpenter  v.  Barber,  44  Vt.  441;  Shores  v.  Brooks,  81  Ga.  46S, 
S  S.  E.  429.  Defendant's  honest  belief  that  he  was  acting  in  the  right  will 
prevent  or  mitigate  exemplary  damages.  Wilkinson  v.  Searcy,  76  Ala.  176; 
Farwell  v.  Warren,  70  111.  28;  Allison  v.  Chandler,  11  Mich.  542;  Brown  v. 
Allen,  35  Iowa,  306. 

*2Ward  V.  Blackwood.  41  Ark.  295;  Johnson  v.  Von  Kettler,  66  111.  03; 
Shay  V.  Thompson,  59  Wis.  540,  18  N.  W.  473;  Currier  v.  Swan,  63  Me.  323; 
Kiff  V.  Youmans.  86  N.  Y.  324,  331;    Huftalin  v.  Misuer,  70  111.  55. 

43  Brown  v.  Evans,  8  Sawy.  488,  17  Fed.  912;  Grable  v.  Margrave,  4  111. 
372;  Jacobs'  Adm'r  v.  Railroad  Co.,  10  Bush,  263;  Sloan  v.  Edwards,  61 
Md.  89;  McCarthy  v.  Niskeru,  22  Minn.  90;  Peck  v.  Small,  35  Miun.  465, 
29  N.  W.  69;  Whitfield  v.  Westbrook,  40  Miss.  311;  Buckley  v.  Kuapp.  48 
Mo.  152;  Belknap  v.  Railroad  Co.,  49  N.  H.  35S;  John.son  v.  Allen,  luo  N. 
C.  131,  5  S.  E.  606;  Ilayner  v.  Cowden,  27  Ohio  St.  292;  McBrido  v.  .Mc- 
Laughlin, 5  Watts,  375;  Dush  v.  Fitzluigli,  2  Lea,  307;  Rca  v.  Harrington, 
58  Vt.  ISl,  2  Atl.  475;    Ilaruiau  v.  CundilT,  82  Va.  2;'.;>;    Spear  v.  Sweeney, 


212  EXEMPLARY    DAMACICS.  (Oh.   7 

Province  of  Court  and  Jury. 

It  is  the  province  of  the  court  to  determine  whether  there  is  any 
evidence  to  support  an  award  of  exemplary  damages.**  It  is  the 
province  of  the  jury  to  determine  whether  or  not  such  damages 
should  be  awarded.*'*  It  is  error  to  submit  the  question  to  the  jury,, 
in  the  absence  of  any  evidence  to  sustain  a  verdict  for  exemplary 
damages,*"  and  it  is  error  to  instruct  the  jury  to  give  exemplary 
damages,  for  they  rest  solely  in  the  discretion  of  the  jury,  and  can- 
not be  claimed  as  a  matter  of  law.*^      The  amount  of  exemplary 

SS  Wis.  545,  GO  N.  W.  lOGO;  Birchard  v.  Booth,  4  Wis.  07;  Meibus  v.  Dodge.. 
38  Wis.  300;  Winn  v.  reckliam,  42  Wis.  493;  Brown  v.  Swiueford,  44  Wis. 
282;  Lavery  v.  Crooke,  52  Wis.  C12,  9  N.  W.  599;  Hare  v.  Marsh,  Gl  Wis, 
435,  21  N.  ^V.  267;  Spear  v.  Hiles,  67  Wis.  350,  30  N.  W.  511.  But  contra, 
Guen^erech  v.  Smith,  34  Iowa,  348.  Defendant  may  show  his  poverty  in* 
rebuttal,  Mullin  v.  Spangenberg,  112  111.  140;  Rea  v.  Harrington,  58  Vt.  181,. 
2  Atl.  475;  or  in  chief,  Johnson  v.  Smith,  G4  INIe.  553.  It  has  been  held  that 
evidence  of  the  pecuniary  condition  of  plaintiff,  is  admissible.  Beck  v.  Do  well, 
111  Mo.  50G,  20  S.  W.  209  (action  for  personal  injuries);  Gaither  v.  Blowers,. 
11  Md.  536;  McNamara  v.  King,  7  111.  432  (assault  and  battery);  Grable  v. 
:Margrave,  4  111.  372  (seduction);    Hayner  v.  Cowden,  27  Ohio  St.  292. 

4*  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Scurr,  59  Miss.  4.56;  City  of  Chicago- 
v.  Martin,  49  111.  241;  Heil  v.  Glanding.  42  Pa.  St.  493;  Kennedy  v.  Rail- 
road Co..  36  Mo.  351. 

*5  Pratt  v.  Pond,  42  Conn.  318;  Dye  v.  Denham,  54  Ga.  224;  Johnson  v. 
Smith,  64  Me.  553;  Smith  v.  Thompson,  55  Md.  5;  Chicago,  St.  L.  &  N.  O. 
R.  Co.  V.  Scurr,  59  Miss.  456;  Graham  v.  Railroad  Co.,  66  Mo.  536;  Nagle  v. 
Mullison,  34  Pa.  St.  48;  Hawk  v.  Ridgway,  33  111.  473.  Punitive  damages 
for  slander  are  not  allowed  as  a  matter  of  right,  but  their  recovery  rests  in^ 
the  sound  discretion  of  the  jury.  Nicholson  v.  Rogers,  129  Mo.  136,  31  S. 
W.  260. 

40  Selden  v.  Cashman,  20  Cal.  56;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Scurr,. 
59  Miss.  456;  Rose  v.  Story,  1  Pa.  St.  190;  Amer  v.  Longstreth,  10  Pa.  St. 
145;  Pittsburgh  Southern  Ry.  Co.  v.  Taylor,  104  Pa.  St.  306;  Philadelphia- 
Traction  Co.  v.  Orbann,  119  Pa.  St.  37,  12  Atl.  816;  Bradshaw  v.  Buchanan, . 
50  Tex.  492. 

*^  Hawk  v.  Ridgway,  ,33  111.  473;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Rector,. 
104  111.  296;  Louisville  &  N.  R.  Co.  v.  Brooks'  Adm'x,  83  Ky.  129;  Southern 
R.  Co.  V.  Kendrick,  40  Miss.  374;  New  Orleans,  St.  L.  &  C.  R.  Co.  v.  Burke, 
53  Miss.  200;  Jerome  v.  Smith,  48  Vt.  230;  Boardman  v.  Goldsmith,  Id.  403;. 
Snow  V.  Carpenter,  49  Vt.  426;  Webb  v.  Oilman,  80  Me.  177,  13  Atl.  688; 
Jacobs  v.  Sire,  4  Misc.  Rep.  398,  23  N.  Y.  Supp.  1063.  Contra,  Mayer  v. 
Duke,  72  Tex.  445,  10  S.  W.  565;    Fox    v.  Wuuderlich,  64  Iowa,   187,  20  X_ 


■§§    85-86)  WHEN    RECOVERABLE.  213 

damages  is  limited  only  by  the  sound  discretion  of  the  jury,*®  but 
where  the  verdict  is  so  excessive  as  to  show  passion,  prejudice,  or 
■corruption,  the  court  may  set  it  aside.'*" 
In  What  Actions  Recoierahle. 

As  a  general  rule,  exemplary  damages  can  be  recovered  only  in 
actions  of  tort.^°  Actions  for  breach  of  promise  of  marriage,  how- 
ever, constitute  an  exception  to  the  rule;  ^^  and  it  has  been  held 
that  exemplary  damages  can  be  recovered  in  an  action  on  a  statutory 
bond,  where  its  condition  was  broken  by  a  tort  such  as  would  or- 
dinarily justify  the  infliction  of  exemplary  damages.^^  In  suits  in 
equity,  exemplary  damages  are  never  given.^^  Where  the  circum- 
stances justify  it,  exemplary  damages  may  be  recovered  in  actions 

\V.  7;  Thill  v.  Pohlman,  TG  Iowa,  638,  41  N.  W.  385;  Hodgson  v.  Millward, 
5  Grant,  Cas.  406;  Piatt  v.  Brown,  30  Conn.  336;  Coryell  v.  Colbaugli,  1  N.  J. 
Law,  77. 

4  8  Graham  v.  Railroad  Co.,  66  Mo.  536;  New  Orleans,  St.  L.  &,  C.  R.  Co. 
V.  Burke,  53  Miss.  200;  Southern  R.  Co.  v.  Kendrick,  40  Miss.  374;  Johnson 
r.  Smith,  04  Me.  553;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Scurr,  59  Miss.  456; 
Borland  v.  Barrett,  76  Ya.  128;  Canfield  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  59 
Mo.  App.  354.  In  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Hurst,  36  Miss.  660,  the 
court  refused  to  set  aside  a  verdict  of  $4,500  against  a  railroad  company  for 
carrying  a  passenger  400  yards  beyond  his  station,  and  refusing  to  return. 
The  court  said  there  was  "no  legal  measurement,  save  their  discretion." 

4  0  Flannery  v.  Railroad  Co.,  4  Mackey,  111;  Cutler  v.  Smith,  57  111.  2.52; 
Farwell  v.  Warren,  70  111.  28;  Collins  v.  Council  Bluffs,  35  Iowa,  432;  Goetz 
V.  Ambs,  27  Mo.  28;  Borland  v.  Barrett,  76  Va.  128;  Rogers  v.  Henry,  32 
Wis.  327. 

t'o  Sodg.  Dam.  §  370.  Exemplary  damages  cannot  be  recovered  in  actions 
of  contract.     Guildford  v.  Anglo-French  Steamship  Co.,  9  Can.  Sup.  Ct.  303. 

51  McPherson  v.  Ryan,  59  Mich.  33,  26  N.  W.  321;  Johnson  v.  Jenkins,  24 
N.  Y.  252;  Thorn  v.  Knapp,  42  N.  Y.  474;  Chellis  v.  Chapman,  125  N.  Y. 
214,  26  N.  E.  308. 

62  Floyd  V.  Hamilton,  33  Ala.  235;  Richmond  v.  Shickler,  57  Iowa,  486, 
10  N.  W.  882;  Renkert  v.  Elliott,  11  Lea,  235.  Contra,  Cobb  v.  People,  81 
111.  511;  McClendon  v.  Wells.  20  S.  C.  514.  Exemplary  damages  are  not 
recoverable  against  the  sureties  on  a  bond  for  a  distress  warrant.  Ham- 
ilton V.  Kllpatrick  (Tex.  Civ.  App.)  29  S.  W.  819.  Sureties  on  sequestration 
or  replevin  bonds  are  not  liable  for  exemplary  damages  on  account  of  tlie 
malice  of  the  principal.  McArthur  v.  Barnes  (Tex.  Civ.  App.)  31  S.  W.  212. 
And  see  North  v.  Johnson,  58  Minn.  242,  59  N    \V.  1012. 

63  All  claims  to  exemplary  damages  are  waived  by  coming  iiilo  e(iuily. 
Bird  V.  Railroad  Co.,  S  Rich.  Eq.  46. 


211  KXEMPLAUY    DAMAGES.  (Ch.  7 

for  assault  and  battery, °*  false  imprisoument,^^  malicious  prosecu- 
tion,^"   defaiiiatiou,^^    willful    injuries    to    person  ^^    or    property,^® 

6*  Buiuly  V.  Magiuess,  76  Cal.  532,  IS  Pac.  OGS;  Smith  v.  Bagwell,  1S> 
Fla.  117;  McNamara  v.  King,  7  111.  432;  Reeder  v.  Purdy,  48  111.  261;  Drolin 
V.  Brewer,  77  111.  280;  Harrison  v.  Ely,  120  111.  S3,  11  N.*  E.  334;  Root  v. 
Sturtlivant,  70  Iowa,  55,  29  N.  W.  S02;  Titus  v.  Corkius,  21  Kan.  722;  Slater 
V.  Sherman,  5  Bush,  206;  Pike  v.  Dilling,  48  Me.  53'J;  Webb  v.  Oilman,  80 
Me.  177,  13  Atl.  688;  President,  etc.,  of  Baltimore  &  Y.  Turnpike  Road  v. 
Boone,  45  Md.  344;  Elliott  v.  Van  Buren,  33  Mich.  49;  Crosby  v.  Hum- 
phreys, 59  Minn.  92,  60  N.  W.  843;  Green  v.  Craig,  47  Mo.  90;  Caufield  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  59  Mo.  App.  354;  Cook  v.  Ellis,  6  Hill,  466; 
Louder  v.  Hinson,  4  Jones  (N.  C.)  369;  Porter  v.  Seller,  23  Pa.  St.  424; 
Newell  V.  Whitcher,  53  Vt.  5S9;  Borland  v.  Barrett,  76  Va.  12S;  Shay  v. 
Thompson,  59  Wis.  540.  18  N.  W.  473. 

C5  Huckle  V.  Money,  2  Wils.  205;  Bradley  v.  Morris,  Busb.  395;  McCarthy 
V.  De  Armit,  99  Pa.  St.  63;  Grohmann  v.  Kirschman,  168  Pa.  St.  189,  32  Atl. 
32;    Clissold  v.  Machell,  26  U.  C.  Q.  B.  422. 

50  Donnell  v.  Jones,  13  Ala.  490;  Coleman  v.  Allen,  79  Ga.  637,  5  S.  E.  204; 
Parkhurst  v.  Masteller,  57  Iowa,  474,  10  N.  W.  864;  McWilliams  v.  Hoban, 
42  Md.  56;  Peck  v.  Small,  35  Minn.  465,  29  N.  W.  69;  Winn  v.  Peckham, 
42  Wis.  493;  Spear  v.  Hiles,  67  Wis.  350,  30  N.  W.  506:  Lueck  v.  Heisler, 
87  Wis.  644,  58  N.  W.  1101. 

5  7  Philadelphia,  W.  &  B.  R.  Co.  v.  Quigley,  21  How.  202;  Binford  v. 
Young,  115  Ind.  174,  16  N.  E.  142;  Daly  v.  Van  Benthuysen,  3  La.  Ann.  69; 
Buckley  v.  Knapp,  48  Mo.  152;  Nicholson  v.  Rogers,  129  Mo.  136,  31  S.  W. 
260;  King  v.  Root,  4  Wend.  113;  Sowers  v.  Sowers,  87  N.  C.  303;  Press 
Pub.  Co.  V.  McDonald,  11  C.  C.  A.  155,  63  Fed.  238;  Barr  v.  Moore.  87  Pa. 
St.  385;  Rea  v.  Harrington,  58  Vt.  181,  2  Atl.  475;  Harman  v.  Cundiff,  82  Va. 
239;  Haines  v.  Schultz,  50  N.  J.  Law,  481,  14  Atl.  4SS  (newspaper  libel); 
Klewin  v.  Bauman,  53  Wis.  244,  10  N.  W.  398.  Express  malice  must  be 
shown.  Republican  Pub.  Co.  v.  Conroy,  5  Colo.  App.  262,  38  Pac.  423; 
Childers  v.  Publishing  Co.,  105  Cal.  284,  38  Pac.  903.  Cf.  Smith  v.  Matthews, 
9  Misc.  Rep.  427,  29  N,  Y.  Supp.  1058.  The  falsity  of  the  defamation  is  evi- 
dence of  malice.  Bergmann  v.  Jones,  94  N.  Y.  51.  But  exemplary  damages 
may  be  recovered,  in  the  absence  of  express  malice,  if  the  defamation  was 
wanton.  Bowden  v.  Bailes,  101  N.  C.  612,  8  S.  E.  342.  The  bad  character 
of  plaintiff  is  admissible  in  mitigation  of  exemplary  damages.  Maxwell  v. 
Kennedy,  50  Wis.  645,  7  N.  W.  657. 

5  8  Dalton  V.  Beers,  38  Conn.  529;  Georgia  R.  R.  v.  Olds,  77  Ga.  073;  .Joffer- 
sonville  R.  Co.  v.  Rogers,  38  Ind.  116;  Philadelphia,  W.  &  B.  R.  Co.  v.  Larkin, 
47  Md.  155;  Knowles  v.  Railroad  Co.,  102  N.  C.  59,  9  S.  E.  7;  Higgins  v.  Rail- 
road Co.,  64  Miss.  80,  S  South.  176;  Dorrah  v.  Railroad  Co.,  65  Miss.  14,  3 
South.  36;   Louisville  &  N.  R.  Co.  v.  Greer  (Ky.)  29  S.  W.  337. 

69  U.  S.  V.  Taylor,  35  Fed.  484;    Devaughu  v.  Heath,  37  Ala.  595;    Bales  v. 


§§    8")-S6)  WHEN    RECOVERABLE.  215 

and  in  actions  of  trover  ^°  and  replevin.®^  In  actions  founded  on 
loss  of  service,  as  for  enticement,®^  seduction,®^  criminal  conver- 
sation,®* and  for  harboring  plaintiff's  wife,®°  exemplary  damages 
may  be  recovered.®® 

Exemplary  Damages  for  Torts  Which  are  Also  Crimes. 

In  actions  of  tort,  where  the  tort  is  also  a  crime,  it  is  held,  in 
some  jurisdictions,  that  exemplary  damages  cannot  be  recovered; 
for  the  defendant  would  be  thereby  subjected  to  double  punishment 

Clark,  15  Ark.  452;  Curtiss  v.  Hoyt,  19  Ctonn.  154;  Shores  v.  Brooks,  81  Ga. 
46S,  8  S.  E.  429;  Cutler  v.  Smith,  57  111.  252;  Chicago  &  I.  R.  Co.  v.  Baker, 
73  111.  316;  Keirnan  v.  Heaton,  G9  Iowa,  136,  28  N.  W.  478;  Briggs  v.  Mil- 
Ijurn,  40  Mich.  512;  Craig  v.  Cook,  28  Minn.  232,  9  N.  W.  712;  Parker  v. 
Shackelford,  61  Mo.  68;  Perkins  v.  Towle,  43  N.  H.  220;  Winter  v.  Peterson, 
24  N.  J.  La-sv.  524;  AUaback  v.  Utt,  51  N.  Y.  651;  Greenville  &  C.  R.  Co.  v. 
Partlow,  14  Rich.  (S.  C.)  237;  Cox  v.  Crumley,  5  Lea  (Tenn.)  529;  Cook  v. 
Garza,  9  Tex.  358;  Camp  v.  Camp,  59  Yt.  667,  10  Atl.  748;  Koenigs  v.  Jung, 
73  Wis.  178,  40  X.  W.  801;  Cumberland  Tel.  &  Tel.  Co.  v.  Poston,  94  Tenn. 
(;96,  30  S.  W.  1040  (wanton  destruction  of  ornamental  trees). 

60  Dennis  v.  Barber,  6  Serg.  &  R.  420;  Harger  v.  McMains,  4  Watts,  418; 
Taylor  v.  Morgan,  3  Watts,  333;  Silver  v.  Kent,  60  Miss.  121.  Contra,  Berry 
V.  Vantries,  12  Serg.  &  R.  89. 

61  Cable  V.  Dakin,  20  Wend.  172;  McDonald  v.  Scaife,  11  Pa.  St.  381;  Brizoe 
v.  Maybee,  21  Wend.  144;  Holt  v.  Van  Eps,  1  Dik.  206,  40  N.  W.  689;  Whit- 
field v.  Whitfield,  40  Miss.  352;  McCabe  v.  Morehead,  1  Watts  &  S.  513;  ,Scho- 
field  v.  Ferrers,  46  Pa.  St.  438;  Single  v.  Schneider,  30  Wis.  570.  Contra, 
Butler  V.  Mehrling,  15  111.  488;  Hotchkiss  v.  Jones,  4  Md.  260.  It  would  seem 
that  the  rule  should  be  the  same  in  actions  of  detinue.  Whitfield  v.  Whitfield, 
40  Miss.  352.     Contra,  McDonald  v.  Norton,  72  lOAva,  052,  34  N.  W.  458. 

62  Smith  V.  Goodman,  75  Ga.  198;  Tyson  v.  Ewing,  3  J.  J.  Marsh.  185;  Bix- 
by  V.  Dunlap,  56  N.  H.  456;    Magee  v.  Holland,  27  N.  J.  Law,  86. 

63  Robinson  v.  Burton,  5  liar.  (Del.)  335;  Grable  v.  Margrave,  4  111.  372; 
Stevenson  v.  Belknap,  6  Iowa,  97;  Fox  v.  Stevens,  13  Minn.  272  (Gil.  252); 
Lavery  v.  Crooke,  52  Wis.  612,  9  N.  W.  599. 

64  Johnson  v.  Disbrow,  47  Mich.  59,  10  N.  W.  79;  Matlieis  v.  Mazet.  161  I'a. 
St.  580,  30  Atl.  431.  See  Williams  v.  Williams,  20  Colo.  51,  37  Pao.  614  (ac- 
tion by  wife  for  enticing  away  husband). 

C3  Johnson  v.  Allen,  100  N.  C.  131,  5  S.  E.  666. 

60  In  case  of  physical  injury  to  a  child  or  servant,  exemiUary  danuiges  can 
be  recovered  only  in  an  action  by  the  child  or  servant.  They  cannot  be  re- 
covered in  an  action  by  the  master  or  parent  for  loss  of  services.  IUa<'k  v. 
Railroad  Co.,  10  La.  Ann.  33;  Hyatt  v.  Adams,  16  Mich.  ISO;  Wliilii.'y  v. 
Hitchcock,  4  Denio,  461.     Contra,  Kliiiginau  v.   Ilnliucs,  .'.1   M...  ."ol. 


216  EXEMPLARY    DAMAGES.  (Ch.    7 

for  the  same  offense."''  In  other  jurisdictions,  this  is  considered  no 
objection  to  the  allowance  of  exemplary  damages,  and  it  is  not  even 
admissible  in  mitigation."*  "Judgment  for  the  criminal  offense  is 
for  the  offense  against  the  public.  Judgment  for  the  tort  is  for  the 
offense  against  the  private  sufferer.  *  *  »  Though  punitory 
damages  go  in  the  right  of  the  public,  for  example,  they  do  not  go 
by  way  of  public  punishment,  but  by  way  of  private  damages, — for 
the  act  as  a  tort  and  not  as  a  crime, — to  the  private  sufferer  and 
not  to  the  state.  Though  they  are  allowed  beyond  compensation  of 
the  private  sufferer,  they  still  go  to  him,  for  himself,  as  damages 
allowed  to  him  by  law,  in  addition  to  his  actual  damages,  like  the 
double  and  treble  damages  sometimes  allowed  by  statute.  Consid- 
ered as  strictly  punitory,  the  damages  are  for  the  punishment  of  the 
private  tort,  not  of  the  public  crime." ""  This  reasoning  is  not  very 
satisfactory.  As  has  been  well  said,''"  after  there  has  been  one 
trial,  in  which  defendant's  culpability  has  been  tried  with  a  view  to 
punishment  in  the  interest  of  the  public,  any  other  trial  for  the  same 
purpose,  whatever  may  be  the  form  of  the  proceeding,  is,  in  sub- 
stance, putting  the  accused  again  in  jeopardy  of  punishment  for  the 
same  offense,  and  vexing  him  again  for  the  same  cause.     In  some 

6  7  Murpby  v.  Hobbs,  7  Colo.  541,  5  Pac.  119;  Huber  v.  Teuber,  3  McAr- 
tbur,  484;  Cherry  v.  McCall,  23  Ga.  193;  Taber  v.  Hutson,  5  Ind.  322;  But- 
ler V.  Mercer,  14  Ind.  479;  Nossaman  v.  Rickert,  18  Ind.  350;  Humphries  v. 
Johnson,  20  Ind.  190;  Meyer  v.  Bohlfing,  44  Ind.  238;  Ziegler  v.  Powell,  54 
Ind.  173;  Stewart  v.  Maddox,  G3  I-^d.  51;  Farman  v.  Lauman,  73  Ind.  5G8; 
Austin  V.  Wilson,  4  Cush.  273;   Fay  v.  Parker,  53  N.  H.  342. 

6  8  Brown  v.  Evans,  8  Sawy.  4SS,  17  Fed.  912;  Phillips  v.  Kelly,  29  Ala. 
G28;  Wilson  v.  Middleton,  2  Cal.  54;  Bundy  v.  Maginess,  76  Cal.  532,  18 
Pac.  6GS;  Jefferson  v.  Adams,  4  Har.  321;  Smith  v.  Bagwell,  19  Fla.  117; 
Hendrickson  v.  Kingsbury,  21  Iowa,  379;  Garland  v.  Wholeham,  2G  Iowa, 
185;  Guengerich  v.  Smith,  36  Iowa,  587;  Redden  v.  Gates,  52  Iowa,  210,  2 
N.  W.  1079;  Chiles  v.  Drake,  2  Mete.  (Ky.)  146;  Elliott  v.  Van  Bureu,  33 
Mich.  49;  Boetcher  v.  Staples,  27  Minn.  308,  7  N.  W.  263;  Wheatley  v.  Thorn, 
23  Miss.  62;  Corwin  v.  Walton,  18  Mo.  71;  Cook  v.  Ellis,  G  Hill,  4GG;  Sowers 
V.  Sowers,  87  N.  C.  303;  Roberts  v.  Mason,  10  Ohio  St.  277;  Barr  v.  Moore, 
87  Pa.  St.  385;  Wolff  v.  Cohen.  8  Rich.  144;  Cole  v.  Tucker.  6  Tex.  2GG;  Ed- 
wards V.  Leavitt,  46  Vt.  126;  Klopfer  v.  Bromme,  26  Wis.  372;  Brown  v. 
Swineford,  44  Wis.  282;    Corcoran  v.  Harran,  55  Wis.  120.  12  N.  W.  468. 

69  Brown  v.  Swineford,  44  Wis.  285.    See,  also.  Fry  v.  Bennett,  4  Duor,  247. 

7  0  Suth.  Dam.  §  402, 


§    87)  LIABILITY    OF    PRINCIPAL   FOR    ACT   OF   AGENT.  217 

jurisdictions,  the  verdict  and  judgment  in  the  first  trial  are  admissi- 
ble in  mitigation  on  the  second.''^ 


LIABILITY  OF  PRINCIPAL  FOE  ACT  OF  AGENT. 

87.  A  principal  is  not  liable  to  exemplary  damages  for 
the  tort  of  his  agent  or  servant,  unless  he  author- 
ized or  ratified  the  act  as  it  -was  performed,  or  -was 
himself  guilty  of  negligence. 
EXCEPTION — In  some  jurisdictions,  if  the  principal  is 
liable  for  compensatory  damages,  he  is  liable  also 
for  exemplary  damages,  if  the  agent  or  servant 
•would  be. 

Exemplary  damages,  being  designed  as  a  punishment,  cannot  just- 
ly be  inflicted  in  the  absence  of  fault,  and  therefore  cannot  be  re- 
covered in  an  action  against  a  principal  for  the  act  of  his  agent  or 
servant,^  ^  unless  he  authorized  or  ratified  the  act  as  it  was  per- 
formed,^^ or  was  himself  guilty  of  negligence  in  employing  the 
agent,^*  or  in  not  preventing  the  act.^^  "For  injuries  by  the  neg- 
ligence of  a  servant  w^hile  engaged  in  the  business  of  the  master, 
within  the  scope  of  his  employment,  the  latter  is  liable  for  com- 
pensatory damages;  but  for  such  negligence,  however  gross  or  cul- 
pable, he  is  not  liable  to  be  punished  in  punitive  damages  unless  he 

71  Taylor  v.  Carpenter,  2  Woodb.  &  M.  1,  23,  Fed.  Gas.  No.  13,785;  State  v. 
Autery,  1  Stew.  (Ala.)  399;  Johnstou  v.  Crawford,  62  N.  C  342;  Porter  v. 
Seller,  23  Pa.  St.  424;  Smithwick  v.  Ward,  7  Jones  (N.  O.)  &4;  Sowers  v. 
Sowers,  87  N.  C.  303;  Flanagan  v.  Womack,  54  Tex.  45;  Shook  v.  Peters,  59 
Tex.  393. 

'2  The  Amiable  Nancy,  3  Wheat.  54G;  Pollock  v.  Gantt,  09  Ala.  373;  Burns 
V.  Campbell,  71  Ala.  271;  Wardrobe  v.  Stage  Co.,  7  Cal.  118;  Mcndolsohn 
V.  Anaheim  Lighter  Co.,  40  Cal.  657;  Grund  v.  Van  Vleck,  69  111.  478;  Keene 
V.  Lizardi,  8  La.  26;  Boulard  v.  Calhoun,  13  La.  Ann.  445;  Te,\as  T.  R.  Co. 
V.  .Tohnson.  75  Tex.  1.58.  12  S.  W.  482. 

73  Lienkauf  v.  Morris.  66  Ala.  406;  Becker  v.  Dujjri-o,  75  111.  167;  Evistou  v. 
Cramer,  .57  Wis.  570,  15  N.  W.  760;  Kilpatrick  v.  Haley.  (i6  Fed.  133,  13  0. 
C.  A,  480. 

74  Burns  v.  Campbell,  71  Ala.  271;   Sawyer  v.  Saner,  10  Kan.  466. 

7B  Freese  v.  Tripp.  70  111.  496;   Kohrlg  v.  Potors,  41  Mich.  475,  2  N.  W.  SOI. 


218  EXEMPLARY    DAMAGES.  (Ch.  7 

is  chargeable  with  gross  misconduct.  Such  misconduct  may  be 
established  bv  showing  that  the  act  of  the  servant  was  authorized 
or  ratified,  or  that  the  master  employed  or  retained  the  servant 
knowing  that  he  was  incompetent,  or  from  bad  habits  unfit  for  the 
position  he  occupied."  ^^  It  is,  however,  sometimes  held  that,  if  the 
principal  is  bound  to  make  compensation  for  the  act  of  his  servant 
or  agent,  he  is  also  liable  to  exemplary  damages  if  the  servant  or 
agent  would  be.''''  In  those  jurisdictions  where  exemplary  damages 
are  in  fact  compensatory,  the  master  is  liable  for  such  damages,  if 
liable  at  all. 

Liability  of  Corporations. 

It  is  usually  held  that  corporations  are  liable  to  exemplary  dam- 
ages for  the  acts  of  their  agents  or  servants,  in  cases  where  the  agent 
or  servant  w^ould  be  liable  to  such  damages.''*     This  is  placed  on 

7  0  Cleghorn  v.  Railroad  Co.,  56  N.  Y.  44.  See,  also,  Sullivan  v.  Navigation 
Co.,  12  Or.  392,  1  Pac.  oOS;  Mace  v.  Reed.  89  Wis.  440,  62  N.  W.  186.  Cf. 
Memphis  &  C.  Packet  Co.  v.  Nagel  (Ky.)  29  S.  W.  743. 

7T  Hazard  v.  Israel,  1  Bin.  240;  Southern  Exp,  Co.  v.  Brown,  67  Miss. 
260,  7  South.  318,  and  8  South.  425.  Exemplary  damages  may  be  recovered 
against  a  firm  for  the  act  of  one  partner  in  the  course  of  the  partnership 
business.     Robinson  v.  Goings,  63  Miss.  500. 

7  8  Citizens'  St.  Ry.  Co.  v.  Steen,  42  Ark.  321;  W.  U.  Tel.  Co.  v.  Eyser,  2 
Colo.  141;  Flannery  v.  Raili'oad  Co.,  4  Mackey,  111;  Illinois  Cent.  R.  Co.  v. 
Hammer,  72  111.  353;  Singer  Manuf'g  Co.  v.  Holdfodt,  86  111.  455;  Wabash, 
St  L.  &  P.  Ry.  Co.  V.  Rector,  104  111.  296;  Wheeler  &  Wilson  Manuf'g  Co.  v. 
Boyce,  36  Kan.  350,  13  Pac.  609;  Southern  Kansas  R.  Co.  v.  Rice,  38  Kan. 
398,  16  Pac.  817;  Bowler  v.  Lane,  3  Mete.  (Ky.)  311;  Jacobs  v.  Railroad  Co., 
10  Bush.  263;  Central  Pass.  R.  Co.  v.  Chatterson  (Ky.)  29  S.  W.  18;  Louis- 
ville &  X.  R.  Co.  V.  Ballard,  85  Ky.  307,  3  S.  W.  530;  Goddard  v.  Railway 
Co.,  57  Me.  202;  Hanson  v.  Railroad  Co.,  62  Me.  84;  Baltimore  &  O.  R.  Co. 
V.  Blocher,  27  Md.  277;  President,  etc.,  of  Baltimore  &  Y.  T.  R.  v.  Boone,  45 
Md.  344;  Baltimore  &  O.  R.  Co.  v.  Barger,  80  Md.  23,  30  Atl.  560;  Philadel- 
phia, W.  &  B.  R.  Co.  V.  Larkin,  47  ^Id.  155;  Yicksburg  &  J.  R.  Co.  v.  Patton, 
31  Miss.  156;  Perkins  v.  Railroad  Co.,  55  Mo.  201;  Travers  v.  Railway  Co., 
63  Mo.  421;  Canfield  v.  Railroad  Co.,  59  Mo.  App.  354;  Belknap  v.  Railroad 
Co.,  49  N.  H.  358;  Atlantic  &  G.  W.  Ry.  Co.  v.  Dunn,  19  Ohio  St.  162;  Lake 
Shore  &  M.  S.  Ry.  Co.  v.  Rosenzweig,  113  Pa.  St.  519,  6  Atl.  545;  Philadelphia 
Traction  Co.  v.  Orbann,  119  Pa.  St.  37,  12  Atl.  816;  Quiun  v.  Railway  Co.,  29 
S.  C.  381,  7  S.  E.  614;  Louisville  &  N.  R.  Co.  v.  Garrett,  8  Lea,  438.  A  rail- 
road company  has  been  held  liable  for  exemplary  damages  for  the  act  of  a 
corporation  operating  its  road  as  a  lessee,  see  Hart  v.  Railroad  Co.,  33  S.  C. 


§    87)  LIABILITY    OF    PRINCIPAL    FOR   ACT    OF    AGENT.  219 

the  ground  that  otherwise  corporations  would  never  be  liable  for 
exemplary  damages,  since  they  can  act  only  by  agents  or  servants. 
Thus  it  has  been  said:^^     ''We  confess  that  it  seems  to  us  that  there 
is  no  class  of  cases  where  the  doctrine  of  exemplary  damages  can  be 
more  beneficially  applied  then  to  railroad  corporations  in  their  ca- 
pacity of  carriers  of  passengers;  and  it  might  as  well  not  be  applied 
to  them  at  all  as  to  limit  its  application  to  cases  where  the  servant 
is  directly  or  impliedly  commanded  by  the  corporation  to  maltreat 
and  insult  a  passenger,  or  to  cases  when  such  act  is  directly  or  im- 
pliedly ratified;  for  no  such  cases  will  occur.    A  corporation  is  an 
imaginary  being.     It  has  no  mind  but  the  mind  of  its  servants.     It 
has  no  voice  but  the  voice  of  its  servants.     It  has  no  hands  with 
which  to  act  but  the  hands  of  its  servants.    All  its  schemes  of  mis- 
chief, as  well  as  schemes  of  public  enterprise,  are  conceived  by  hu- 
man minds  and  executed  by  human  hands.     All  attempts,  therefore, 
to  distinguish  between  the  guilt  of  the  servant  and  the  guilt  of  the 
corporation,  or  the  malice  of  the  servant  and  the  malice  of  the  cor- 
poration, or  the  punishment  of  the  servant  and  the  punishment  of 
the  corporation,  are  sheer  nonsense,  and  only  tend  to  confuse  the 
mind  and  confound  the  judgment."    In  many  jurisdictions,  however, 
the  same  rule  is  applied  to  corporations  as  is  applied  to  individuals, 
and  the  corporation  is  not  liable  unless  it  authorized  or  ratified  the 
act.^**     Obviously,  a  corporation  can  authorize  or  ratify  an  act  of 

427,  12  S.  E.  9;  and  for  act  of  conductor  in  ejecting  passenger,  Soutbern 
Kansas  R.  Co.  v.  Rice,  38  Kan.  398,  16  Pac.  817;  Goddard  v.  Railroad  Co.,  57 
Me.  202;  Lucas  v.  Railroad  Co.,  98  Mich.  1,  56  N.  W.  1039;  Louisville,  N.  A. 
&  C.  R.  Co.  V.  Wolfe,  128  Ind.  347,  27  N.  B.  606.  Cf.  Lake  Shore  &  M.  S.  R. 
Co.  V.  Prentice.  147  U.  S.  101.  13  Sup,  Ct.  261. 

TO  Goddard  v.  Railway  Co.,  57  Me.  202,  223.  See,  also,  Hanson  v.  Railway 
Co.,  62  Me.  84. 

80  City  Nat.  Bank  v.  Jeff.ries,  73  Ala.  1S3;  Turner  v.  Railroad  Co.,  34  Cal. 
594;  Mendelsohn  v.  Lighter  Co.,  40  Cal.  657;  McCoy  v.  Railroad  Co.,  5  Houst. 
599;  Hill  v.  Railroad  Co.,  11  La.  Ann.  292;  Great  Western  Ry.  Co.  v.  Miller, 
19  Mich.  305;  Ackerson  v.  Railway  Co.,  32  N.  J.  Law,  254;  Murphy  v.  Rail- 
road Co.,  48  N.  Y.  Super.  Ct.  90;  Sullivan  v.  Navigation  Co.,  12  Or.  392;  Koll 
V.  Gas  Co.,  131  Pa.  St.  466,  19  Atl.  78.  Cf.  Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Rosenzwelg,  113  Pa.  St.  519,  6  Atl.  545;  IMiiladelphla  Traction  Co.  v.  Orbann, 
119  Pa.  St.  37,  12  Atl.  816;  Ilagnn  v.  Uaihoad  Co..  3  R.  I.  88;  Hays  v.  Rail- 
road Co.,  40  Tex.  272;    Galvostoii,  II.  .Vc  S.  A.  Uy.  Co.  v.  Donalioe,  56  Tex.  162; 


-20  EXEMPLARY    DAMAGES.  (Cll.   7 

nil  agent  onl}'  by  the  act  of  another  agent.  A  distinction  must  "be 
drawn  between  directors  and  other  agents,  whose  acts  are  the  acts 
of  the  corporation,  and  mere  servants. 

luteruational  &  G.  N.  R.  Co.  v.  Garcia,  7u  Tex.  207,  7  S.  W.  802;  Ilicketts  v. 
liailway  Co.,  33  W.  Va.  433,  10  S.  E.  801;  Milwaukee  &  M.  R.  Co.  v.  Kinney, 
10  Wis.  388;  Bass  v.  Railway  Co.,  36  Wis.  450,  39  Wis.  63G;  Craker  v.  Rail- 
n\ay  Co.,  36  Wis.  657:  Eviston  v.  Cramer,  57  Wis.  570,  15  N.  W.  760;  Lake 
Shore  c*c  M.  S.  R.  Co.  v.  Prentice,  147  U.  S.  101,  13  Sup.  Ct.  2G1;  The  Nor- 
mannia,  62  Fed.  469;  Beers  v.  Packet  Co.,  Id.  Where  a  railroad  company  rat- 
ifies the  malicious  act  of  its  conductor  in  removing  a  passenger  from  a  train 
with  unnecessary  force,  it  is  liable  for  exemplary  damages.  International  & 
G.  N.  Ry.  Co.  V.  Miller  (Tex.  Civ.  App.)  28  S.  W.  233. 


§    88)  PLEADING    AND    PRACTICE.  221 


CHAPTER   Vm. 

PLrEADl.NG   AND    PRACTICE. 

88.    Allegation  of  Damage— The  Ad  Da r  num. 
89t-91.  Form  of  Statement. 

92-93.    Fiovince  of  Court  and  Jury. 

ALLEGATION  OF  DAMAGE— THE  AD  DAMNUM. 

88.  When  the  object  of  an  action  is  to  recover  damages, 
the  declaration  should  allege  that  the  injury  is  to 
the  damage  of  the  plaintiff,  and  the  amount  of  the 
damage  should  be  stated.  The  recovery  cannot,  in 
general,  exceed  the  amount  specified,  though  it 
may  be  less. 

The  declaration  in  an  action  at  law  consists  of  a  statement  of  the 
facts  upon  which  plaintiff  bases  his  right  to  relief.  When  the  ac- 
tion is  to  recover  damages,  the  declaration  should  allege  that  the 
facts  resulted  in  damage  to  the  plaintiff.  The  amount  should  be 
stated,  and  should  be  fixed  sufficiently  high  to  cover  the  real  de- 
mand, as  the  plaintiff  cannot,  in  general,  recover  a  greater  amount 
than  he  has  alleged.^     But  the  jury  may  find  a  less  amount  than 

i  Annis  v.  Upton,  G6  Barb.  370;  Mclntire  v.  Clark,  7  Wend.  330;  Lake  v. 
Merrill,  10  N.  J.  Law,  288;  Herbert  v.  Hardenbergh,  Id.  222;  Hawk  v.  Ander- 
son, 9  N.  J.  Law,  319;  Stafford  v.  City  of  Oskaloosa,  57  Iowa,  748.  11  N.  W. 
COS;  Davenport  v.  Bradley,  4  Conn.  309;  Henderson  v.  Stainton,  Hardin,  123; 
Robinett  v.  Morris'  Adm'rs,  Id.  93;  Tyuer  v.  Hays,  37  Ark.  .")99;  White  v. 
Cannada,  25  Ark.  41;  Snow  v.  Grace,  Id.  570;  Derrick  v.  Jones,  1  Stow.  (Ala.) 
18;  Hall  v.  Hall,  42  Ind.  585;  McWhorter  v.  Sayre,  2  Stew.  (Ala.)  225;  Rowan 
V.  Lee,  3  J.  J.  Marsh.  97;  Edwards  v.  Wiester,  2  A.  K.  Marsh.  382;  Cheveley 
V.  Moi-ris,  2  W.  Bl.  1.300;  Curtiss  v.  Lawrence,  17  Johns.  Ill;  Fish  v.  Dodge. 
4  Denio,  311;  Pierson  v.  Finney,  37  111.  29:  KcUey  v.  Bank,  G4  111.  541;  Lantz 
V.  Froy,  19  Pa.  St.  3GG;  David  v.  Conard,  1  Greene  (Iowa)  33G;  Cameron  v. 
Boyle,  2  Greene  (Iowa)  154.  But  see  Calumet  Iron  &  Steel  Co.  v.  Martiu,  115 
111.  .3.58,  3  N.  E,  45G,  where  it  was  held  error  to  instruct  the  jury  not  to  ;,'lve 
damages  above  the  ad  damnum.  The  error  in  roiidcrlng  a  verdict  in  excess  of 
tlic  ad  damnum  may  be  cured  Ijy  plaintiff  romittin;;  the  o.\ccss,  or  the  nd 
damnum   may    be  amended.      Ilaiiis    v.   .laffray,   3   liar.    iV:   J.   51."!;    Caliill   v. 


222  PLEADING    AND    PRACTICE.  (Ch.    8 

that  alleged.  The  mere  fact  that  a  plaintiff  claims  more  than  the 
facts  alleged  entitle  him  to  will  not  render  the  declaration  demur- 
rable,^ but  he  cannot  recover  more  than  the  facts  will  warrant.^ 
After  verdict,  it  will  be  presumed  that  the  damages  were  assessed 
according  to  the  proof.'* 

The  portion  of  the  declaration  alleging  and  claiming  damages  is 
call  the  "ad  damnum."  It  is  usually  considered  as  a  legal  conclu- 
sion from  the  facts  stated.  Where  this  is  true,  it  cannot  be  trav- 
ersed, and  is  not  admitted  by  a  failure  to  answer  or  deny  it.^  It  is 
a  matter  of  form,  not  of  substance."  If  it  is  omitted,  or  left  blank, 
the  judgment  is  not  for  that  reason  void.'^  In  some  jurisdictions 
the  allegation  of  the  amount  of  damages  is  considered  an  allegation 
of  fact,  and  traversable.®    In  code  states  a  declaration  will  not  sup- 

Pintony,  4  Munf.  371;  Schneider  v.  Seeley,  40  111.  257;  Pickerinj?  v.  Pulsifer, 
9  111.  79;  Grass  Val.  Quartz  Min.  Co.  v.  Stackhouse,  6  Cal.  413;  Lantz  v.  Frey, 
19  Pa.  St.  366.  See  Corning  v.  Corning,  6  N.  Y.  97;  Tyner  v.  Hays,  37  Ark. 
599;  Miller  v.  Weeks,  22  Pa.  St.  890;  McClannaban  v.  Smith,  76  Mo.  42S; 
Johnson  v.  Brown,  57  Barb.  118;  Deane  v.  O'Brien,  13  Abb.  Prac.  11;  Dress- 
ier V.  Davis,  12  Wis.  58;  Moore  v.  Tracy,  7  Wend.  229;  Palmer  v.  Wylie,  19 
Johns.  276;  Jackson  v.  Covert's  Adm'rs,  5  Wend.  139;  Crabb's  Ex'rs  v. 
Bank,  6  Yerg.  332.  Where  double  damages  are  claimed,  the  ad  damnum 
limits  the  actual  damage.    Rosevelt  v.  Hanold,  65  Mich.  414,  32  N.  W.  443. 

2  Lelaud  v.  Tousey,  6  Hill,  328;   W.  U.  Tel.  Co.  v.  Hopkins,  49  Ind.  223. 

8  Murphy  v.  Evans,  11  Ind.  517;  Wainwright  v.  Weske,  82  Cal.  196,  23  Pac. 
12. 

*  Van  Rensselaer's  Ex'rs  v.  Platner's  Ex'rs,  2  Johns.  Cas.  17. 

5  Jenkins  v.  Steanka,  19  Wis.  126;  Bartelt  v.  Braunsdorf,  57  Wis.  1,  14  N. 
W.  869;  Raymond  v.  Traffarn,  12  Abb.  Prac.  52;  Woodruff  v.  Cook,  25  Barb. 
505;  McKensie  v.  Farrell,  4  Bosw.  192;  Thompson  v.  Lumley,  7  Daly,  74; 
Newman  v.  Otto,  4  Sandf.  668;    McLees  v.  Felt,  11  Ind.  218. 

6  Connoss  v.  Meir.  2  E.  D.  Smith,  314 

T  Galena  &  C.  U.  R.  Co.  v.  Appleby,  28  111.  283;  Mattingly  v.  Darwin,  23  111. 
618;  Hargrave  v.  Penrod,  1  111.  401;  Bank  of  Metropolis  v.  Guttschlick,  14 
Pet.  19;  Stephens  v.  White,  2  Wash.  (Va.)  260.  See,  also,  Kennedy  v.  Woods, 
3  Bibb,  322;   Digges  v.  Norris,  3  Hen.  &  M.  268;   Palmer  v.  Mill,  Id.  502. 

8  Brownson  v.  Wallace,  4  Blatchf.  465,  Fed.  Cas.  No.  2,042;  Tucker  v.  Parks, 
7  Colo.  62,  1  Pac.  427;  Carlyon  v.  Lannan,  4  Nev.  156;  Cole  v.  Hoeburg,  36 
Kan.  203,  13  Pac.  275;  White  v.  Stage  Co.,  5  Or.  99.  Failure  to  deny  the 
amount  claimed  admits  that  that  is  the  correct  amount  due.  Huston  v.  Rail- 
road Co.,  45  Cal.  550;  Dimick  v.  Campbell,  31  Cal.  23S;  Patterson  v.  Ely.  19 
Cal.  28. 


•§§    89-91)       ALLEGATION    OF    DAMAGE FORM    OF    STATEMENT.  223 

port  a  judgment  by  default  unless  it  contains  an  allegation  of  dam- 
ages.* 

SAME— FORM  OF  STATEMENT. 

89.  With   respect  to   questions   of  pleading,  damages  are 

divided  into  two  classes: 

(a)  General,  and 

(b)  Special. 

90.  General  damages   are   such  as  necessarily  result  from 

the  -w^rong  complained  of.  They  are  therefore  pre- 
sumed by  law,  and  need  not  be  specifically  alleged. 

91.  Special   damages   are  such   as  are   not   the   necessary 

consequence  of  the  wrong  complained  of,  but  w^hich 
actually  occur  as  a  proximate  result  thereof.  They 
are  not  presumed  by  law,  and  must  be  pleaded  spe- 
cially and  circumstantially,  or  compensation  there- 
for cannot  be  recovered. 

Mr.  Chitty  says:  "Damages  are  either  general  or  special.  Gen- 
eral damages  are  such  as  the  law  implies  or  presumes  to  have  ac- 
crued from  the  wrong  complained  of.  Special  damages  are  such  as 
really  took  place,  and  are  not  implied  by  law,  and  are  either  super- 
added to  general  damages  arising  from  an  act  injurious  in  itself, — 
as  when  some  particular  damage  arises  from  the  uttering  of  slander- 
ous words  actionable  in  themselves, — or  are  such  as  arise  from  an 
act  indifferent,  and  not  actionable  in  itself,  but  only  injurious  in  its 
consequences."^"  Again:  "It  docs  not  appear  necessary  to  state 
the  former  description  of  the  damages  in  the  declaration,  because 
presumptions  of  law  are  not,  in  general,  to  be  pleaded  or  averred  as 
facts.     ♦     *     ♦     But,  when  the  law  does  not  necessarily  imply  that 

9  Simonson  v.  Blake,  12  Abb.  Prac.  331;  Waltou  v.  Walton,  ;52  Barb.  20;',; 
Pittsburgh  Ckial  Min.  Co.  v.  Greenwood,  39  Cal.  71;  Gautier  v.  Euglish,  21)  Cal. 
1G5;  Parrott  v.  Den,  34  Cal.  79.  In  some  states,  by  statute,  in  actinns  of  ccii- 
tract,  damages  need  not  be  proved.  Cole  v.  Hoeburg,  3(5  Kan.  2'i;5,  13  Pac. 
275;  White  v.  Stage  Co.,  5  Or.  99.  See,  also,  Bartk-lt  v.  Bank,  79  ("al.  21S. 
21  Par-.  743. 

10  Chit.    PI.   410. 


224  PLEADIxXG    AND    PRACTICE.  (Cll.   8 

the  plaintiff  sustained  the  damages  by  the  act  complained  of,  it  is 
essential  to  the  validity  of  the  declaration  that  the  resulting  damage 
should  be  shown  with  particularity.  *  *  *  And  whenever  the 
damages  sustained  have  not  necessarily  accrued  from  the  act  com- 
plained of,  and  consequently  are  not  implied  by  law,  then,  in  order 
to  prevent  surprise  on  the  defendant,  which  might  otherwise  ensue 
at  the  trial,  the  plaintiff  must,  in  general,  state  the  particular  dam- 
age which  he  has  sustained,  or  he  will  not  be  permitted  to  give  evi- 
dence of  it.  Thus,  in  an  action  of  trespass  and  false  imprisonment^ 
where  the  plaintiff  offered  to  give  in  evidence  that  during  the  im- 
prisonment he  was  stinted  in  his  allowance  of  food,  he  was  not  per- 
mitted to  do  so,  because  the  fact  was  not,  as  it  should  have  been, 
stated  in  the  declaration;  and  in  a  similar  action  it  was  held  that 
the  plaintiff  could  not  give  evidence  of  his  health  being  injured,  un- 
less specially  stated.  So,  in  trespass  'for  taking  a  horse,'  nothing 
can  be  given  in  evidence  which  is  not  expressed  in  the  declaration; 
and,  if  money  was  paid  over  in  order  to  regain  possession,  such  pay- 
ment should  be  alleged  as  special  damages."  ^^  These  rules  are 
equally  applicable  to  pleadings  under  the  code  or  common-law  sys- 
tems. 

It  has  been  seen  that  nominal  damages  can  be  recovered  only  In 
cases  where  the  law  will  presume  damage.^  ^  Such  damages  are 
necessarily  general.  They  could  not  be  specially  pleaded.  All  that 
is  necessary  is  that  the  declaration  shall  state  facts  constituting  a 
cause  of  action.^' 

Compensatory  damages,  strictly  so  called,  may  be  either  general 
or  special.  In  either  case  the  plaintiff  must  prove  the  amount.  If 
they  are  general,  the  law  may  presume  that  some  such  damage  re- 
sulted, but  it  cannot  presume  anything  as  to  its  amount.  The 
plaintiff  must  therefore  show  the  amount  by  evidence,  or  only  nom- 
inal damages  can  be  recovered.^*     Where  compensation  is  sought 

11  Id.  411. 

12  See  ante,  p.  24. 

13  Cowley  V.  Davidson,  10  Minn.  392  (Gil.  314);  Hood  v.  Palm,  8  Pa.  St. 
237;  Parker  v.  Griswold,  17  Conn.  2SS. 

1*  See  ante,  pp.  25,  70;  Sutli.  Dam.  §  9;  Scdg.  Dam.  §  97;  Frcese  v.  Crary,  29 
Ind.  524;  Carl  v.  Coal  Co.,  69  Iowa,  519,  29  N.  W.  437;  Thorp  v.  Bradley,  75 
Iowa,  55,  39  X.  W.  177;  Bruce  v.  Pettengill,  12  N.  H.  341. 


§§    89-91)       ALLEGATION    OF    DAMAGE FORM    OF   STATEMENT.  225 

for  special  damage,  its  amount  must  be  proved,  at  least  approxi- 
mately, or  nothing  can  be  recovered. 

Exemplary  damages  need  not  be  specially  pleaded.^'  The  rules 
of  pleading  do  not  require  that  the  circumstances  which  attend  the 
tort  shall  be  specially  averred,  in  order  to  entitle  the  plaintiff  to 
damages  commensurate  with  them.  They  are  matters  of  evidence, 
and  should  not  be  pleaded.  If  outrage  and  oppression  attend  a 
tort,  they  belong  to  the  wrongful  act  itself,  and  are  not  merely  spe- 
cial injury.^®  "In  trespass  you  may  charge  and  prove  the  whole 
circumstances  accompanying  the  act,  and  which  were  part  of  the 
res  gestae,  in  order  to  show  the  temper  and  purposes  with  which 
the  trespass  was  committed."  ^^  It  has  been  held  that,  where  ex. 
emplary  damages  are  claimed  on  the  ground  of  malice,  malice  must 
be  pleaded.^* 

Illustrations. 

Bodily  and  mental  suffering  are  the  necessary  consequence  of  a 
personal  injury.  They  are  therefore  general,  and  not  special  items 
of  damage,  and  may  be  proved  without  being  pleaded.^®  In  an  ac- 
tion for  personal  injuries,  under  an  allegation  that  plaintiff  was 
thereby  prevented  from  attending  to  his  ordinary  business,  he  cannot 

iBGustafson  v.  Wind,  C2  Iowa,  281.  17  N.  W.  523;  Andrews  v.  Stone.  10 
Minn.  72  (Gil.  52);  Wilkinson  v.  Drew,  75  Me.  300;  Southern  Exp.  Co.  v. 
Brown,  67  Miss.  260,  7  South.  31S,  and  8  South,  425;  Savannah,  P.  &  W.  Ry. 
Co.  V.  Holland,  82  Ga.  257,  10  S.  E.  200;  Alabama  G.  S.  R.  Co.  v.  Arnold,  84 
Ala.  159,  4  South.  359.  Contra,  International  &  G.  N.  R.  Co.  v.  Smith,  02  Tex. 
252;   Galveston,  H.  &  S.  A.  R.  Co.  v.  Le  Gierse,  51  Tex.  189. 

1 6  Per  Strong,  J.,  in  Schofield  v.  Ferrers,  46  Pa.  St.  438.  Under  some  Codes, 
the  facts  justifying  the  allowance  of  exemplary  damages  must  be  pleaded. 
Welsh  V.  Stewart,  31  Mo.  App.  370;  Sullivan  v.  Navigation  Co.,  12  Or.  392, 
7  Pac.  508. 

1'  Ogdon  V.  Gibbons,  5  X.  .7.  Law,  518. 

18  .Johnson  v.  Railroad  Co.,  51  Iowa,  25.  50  N.  W.  ,543;  Jones  v.  Marshall,  50 
Iowa,  739,  10  N.  W.  204.  In  an  action  for  malicious  prosecution,  exemplary 
damages  may  be  recovered  without  being  specially  pleaded,  as  such  damages 
arise  from  the  existence  of  malice.     Davis  v.  Seeley  (Iowa)  00  X.  W.  IS."?. 

10  Bodily  pain.  Curtis  v.  Railroad  Co.,  18  N.  Y.  534;  Swarthout  v.  Steam- 
boat Co.,  40  Barb.  222.  Mental  suffering.  Gronan  v.  Kukkuck,  59  Iowa,  18,  12 
N.  W.  748;  Brown  v.  Railroad  Co.,  '.)'.)  .Mo.  310,  12  S.  W.  055;  Central  Railroad 
&  Banking  Co.  v.  Lanier,  83  Ga.  587.  10  S.  E.  279;  Wright  v.  Compton,  53  Ind. 
337. 

LAW  DAM.  — 15 


226  PLEADING    AND    PRACTICE.  (Cll.   S 

show  the  amount  of  his  earnings  in  a  particular  business.'^"  "As 
the  business  is  not  stated,  nor  any  earnings  or  loss  of  earnings  men- 
tioned, the  allegation  referred  to  can  only  be  construed  as  intended 
to  characterize  the  injury,  and  indicate  its  extent  and  permanence 
in  a  general  way,  which  amounts  simply  to  a  claim  for  general  dam- 
ages, and  lays  no  foundation  at  all  for  proof  of  special  damages. 
The  evidence  referred  to  was  not  intended  simply  to  show  the  ef- 
fect and  extent  of  the  injury,  but  to  enhance  the  damages,  by  show- 
ing tlie  loss  of  earnings  in  a  special  employment,  requiring  some 
special  skill  and  training.  These  damages,  therefore,  were  not  the 
necessary  result  of  the  acts  set  out  in  the  declaration,  and  could  not 
be  implied  by  law;  but  they  were  special  damages,  which,  in  order 
to  prevent  a  surprise  upon  the  defendant,  must  be  particularly  spec- 
ified in  the  declaration,  or  the  plaintiff  will  not  be  permitted  to  give 
evidence  of  them  at  the  trial."  ^^ 

An  action  for  malicious  prosecution  can  be  sustained  only  on 
proof  of  damage.  The  law  will  not  presume  damage.  Accordingly, 
special  damage  must  be  proved,  in  order  to  show  an  actionable 
wrong,  and  only  such  items  of  damage  as  are  specially  pleaded  may 
be  shown.  Thus,  damages  for  loss  of  credit  or  reputation  cannot 
be  recovered  unless  specially  pleaded.-- 

Slanderous  words  spoken  of  one  with  reference  to  his  calling  are 
actionable  per  se.  The  law  presumes  damage.  Hence  damages 
may  be  recovered  under  the  general  allegation  of  damage  for  a 
general  loss  or  decrease  of  trade.^^  But  loss  of  particular  customer* 
or  sales  is  special  damage,  and  must  be  alleged.^*  The  loss  of  use 
of  property  is  a  necessary  consequence  of  its  wrongful  detention, 
and  damages  therefor  may  accordingly  be  recovered,  though  not  spe- 

-so  Tomlinson  v.  Derby,  43  Conn.  562.  See,  also,  Wabash  W.  R.  Co.  v.  Fried- 
man, 14G  111.  583,  30  N.  E.  353,  and  34  N.  E.  1111. 

21  Taylor  v.  Town  of  Monroe,  43  Conn.  36,  46.  See.  generally,  Hunter  v. 
Stewart,  47  Me.  419;  Johnson  v.  Von  Kettler,  S4  111.  315;  O'Leary  v.  Rowan, 
31  Mo.  117. 

2  2  Donnell  v.  Jones,  13  Ala.  490.  See.  also,  Rowand  v.  Bellinger,  3  Strob. 
373;    Stanfield  v.  Phillips,  7S  Pa.  St.  73. 

23  Foulger  v.  Xewcomb,  L.  R.  2  Exch.  327;  Evans  v.  Harries,  1  Hurl.  &  N. 
251. 

2-1  See  Heiser  v.  Loomis,  47  Mich.  16.  10  N.  W.  60;  Chicago  W.  D.  R.  Co.  v. 
Klauber,  9  111.  App.  613;    Pollock  v.  Gantt,  69  Ala.  373. 


§§  92-93)  PKOVINCE  OF  COURT  AND  JURY.  227 

cially  pleaded."  Expenses  incurred  in  an  attempt  to  avoid  tlie  con- 
sequences of  defendant's  wrong  are  special  damages,  and  must  be 
pleaded.^* 

Damages  for  the  direct  losses  caused  by  a  breach  of  contract  may 
be  recovered,  though  not  specially  pleaded.  Such  damages  are  the 
inevitable  and  necessary  result  of  a  breach.  Thus,  the  profit  which 
would  have  been  realized  as  the  direct  result  of  work  done  at  the 
■contract  price  may  be  recovered,  though  not  specially  alleged.^''  In 
an  action  on  an  injunction  or  attachment  bond,  counsel  fees  incurred 
in  dissolving  the  injunction  or  attachment  must  be  specially 
pleaded. 

PROVINCE  OF  COURT  AND  JURY. 

92.  The  measure  of  damages  is  a  question  of  la^w,  for  the 

court. 

93.  The   am.ount   of  damages  is   a   question  of  fact,  to  be 

determined  from  the  evidence  by  the  jury.  The 
jury  are  bound  to  follow  the  measure  of  damages 
laid  do-wn  by  the  court. 

It  has  already  been  stated  that  in  the  assessment  of  damages  the 
general  rule  is  that  the  measure  of  damages  is  a  question  of  law,  for 
the  court,  and  the  amount  of  damages  is  a  question  of  fact  for  the 
jury.  It  is  proposed  here  to  examine  more  in  detail  the  meaning  and 
application  of  the  general  rule.  The  rule  is  equally  applicable  to 
cases  of  tort  and  cases  of  contract. 

Pecuniary  Injuries. 

VHiieve  an  injury  results  only  in  pecuniary  damage,  the  question 
for  the  jury  is  primarily  of  what  items  the  loss  consists,  and,  sec- 

2  5  Woodruff  V.  Cook,  25  Barb.  505.  Contra,  Adams  v.  Gardner.  78  111.  5US. 
In  trover  or  replevin,  or  trespass  lor  the  destruetiou  of  property,  loss  of  Ibo 
value  of  the  property  is  the  only  damage  presumed.  Any  other  damages 
suffered  must  be  specially  pleaded.  Schofield  v.  Ferrers,  40  Pa.  St.  438; 
Brink  v.  FreofC,  44  Mich.  (19,  G  N.  W.  94;  Stevenson  v.  Smith.  IW  Cal.  lO'J; 
Burrage  v.  Melson,  48  Miss.  2:'.7. 

28  Patten  v.  Libbey,  32  .Me.  37S;    Teagarden  v.  IleUicld,  11  lud.  522. 

27  Burrell  v.  Salt  Co.,  14  Mich.  34.  See,  also,  T,ar!i\\:iy  v.  Perkins,  10  N.  Y. 
371;    Ward  v.  Smith,  11  Price,  19;    Drlggs  v.  I)\vi;,'lii,  17  Weml.  71. 


228  PLEADING    AND    PRACTICE.  (Ch.  S 

ondly,  what  is  the  value  of  the  thing  lost.  Both  of  these  questions 
must  be  determined  from  the  evidence,  and  according  to  the  rule  of 
damages  laid  down  by  the  court.  This  is  equally  true  in  cases  of 
contracts  and  cases  of  torts.  "In  cases  where  a  rule  can  be  dis- 
covered, the  jury  are  bound  to  adopt  it."  ^^  The  only  difference  be- 
tween contracts  and  torts  is  that  in  cases  of  contract  the  loss  is 
usually  wholly  pecuniary,  while  in  cases  of  tort  the  loss  is  perhaps 
quite  as  often  nonpecuniary  as  otherwise.  The  items  of  loss,  and 
the  value  of  the  thing  lost,  must  be  proved  by  evidence.  Even  in 
cases  where  the  law  will  presume  damage,  it  will  not  presume  any 
definite  amount  of  damage,  and  the  jury  are  not  allowed  to  find 
substantial  damages  in  the  absence  of  any  evidence  as  to  the  actual 
amount.^"  Where  no  damages  are  proved,  a  verdict  for  more  than 
nominal  damages  will  be  set  aside,  unless  it  is  a  case  where  exem- 
plary damages  are  proper.^^  Where  damages  will  not  be  presumed, 
the  evidence  must  show  substantial  damages,  or  the  verdict  must  be 
for  defendant.  Value  cannot  always  be  proved  with  exactness. 
The  jury  necessarily  have  a  certain  discretion  within  the  range  of 

2  0  Walker  v.  Smith,  1  Wash.  C.  C.  1.j2.  Fed  Cas.  No.  17,080.  It  is  the  duty 
of  the  court  to  define  the  elements  of  damag'^.  and  of  the  jury  to  assess  them; 
and  when  the  court  fails  so  to  do,  but,  on  the  contrary,  instructs  the  jury  that 
they  may  assess  such  damages  as  they  think  just,  and  take  into  considera- 
tion as  elements  of  damages  any  items  they  think  proper,  svch  instruction  is- 
erroneous.    Union  Pae.  Ry.  Co.  v.  Shook  (Kan.  App.)  44  Pac.  685. 

30  See  ante,  pp.  2o,  70.  A  default  admits  plaintiff's  right  to  recover  some  dam- 
ages, but  not  the  amount  of  damages.  In  the  obsence  of  evidence  as  to  the 
amount,  plaintiff  recovers  only  nominal  damages.  Chicago  &  I.  R.  Co.  v. 
Baker,  73  111.  316.  After  default  there  cannot  be  a  verdict  for  defendant. 
Nominal  damages  at  least  must  be  given.  Ellis  v.  State,  2  Ind.  262.  After 
default  in  an  action  for  negligence,  defendant  may  show,  tor  the  purpose  of 
reducing  damages  to  a  nominal  sum,  that  he  was  not  guilty  of  negligence. 
Batchelder  v.  Bartholomew,  44  Conn.  494.  Where  plaintiff  claims  exemplary 
aamages,  and  defendant  defaults,  plaintiff  must  give  evidence  of  circum- 
stances justifying  exemplary  damages,  or  they  cannot  be  given.  Chicago  «& 
I.  R.  Co.  V.  Baker,  73  111.  316.  A  demurrer  admits  all  material  facts  welt 
pleaded,  but  does  not  admit  the  amount  of  damage,  la  the  absence  of  proof, 
only  nominal  damages  can  be  recovered.  Crogan  v.  Schiele,  53  Conn  186,  1 
Atl.  899,  and  5  Atl.  G73;    Hanley  v.  Sutherland.   14  Me.  212. 

31  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Dcwin.  86  111.  28P;  Cochrane  v.  Tuttlo.. 
75  111.  361;  Oakley  Mills  Manuf'g  Co.  v.  Xeese,  54  Ga.  459;  De  Briar  v.  Min- 
turn,  1  Cal.  450;    Smith  v.  Houston.  25  Ark.  183. 


|§    92-93)  PROVINCE    OF    COURT    ANJJ   JURY.  229 

the  testimony.     But,  \\liere  the  verdict  is  either  much  greater  or 
much  less  than  the  amount  proved,  it  will  be  set  aside.^- 

"Where  there  is  a  legal  measure  of  damages  the  jury  must  de- 
termine the  amount  as  a  fact  according  to  that  measure,  otherwise 
the  law  which  measures  the  compensation  would  be  of  no  avail ;  and 
whether  they  have  done  so  or  not,  in  a  given  case,  may  be  proxi- 
mately seen  by  a  comparison  of  the  verdict  with  the  evidence."  ^*  If 
the  jury  disregards  the  measure  of  damages  given  them  by  the 
court,  or  the  court  instructs  them  erroneously  as  to  the  measure  of 
damages,  the  verdict  may  be  set  aside.^*  Thus,  in  an  action  for 
breach  of  contract  of  sale,  the  ordinary  measure  of  damages  is  the 
difference  between  the  contract  price  and  the  market  value  at  the 
time  the  goods  should  have  been  delivered.  If  the  jury  disregard 
this  measure,  and  find  a  different  sum,  the  verdict  will  be  set  aside. 
What  is  the  contract  price,  and  what  is  the  market  value,  are  ques- 
tions of  fact,  to  be  determined  by  the  jury  from  the  evidence.  The 
jury  may  adopt  as  the  market  value  any  value  between  the  highest 
and  lowest  values  testified  to,  but  the  value  adopted  must  be  sus- 
tained by  some  evidence.^  ^  Similarly,  in  an  action  in  tort  for  the 
simple  conversion  of  property,  the  ordinary  measure  of  damages 
is  the  value  of  the  property  at  the  time  of  conversion,  with  interest. 
A  verdict  for  any  other  sum  is  erroneous.^* 

Nonpecnmiary  Injuries. 

It  is  where  a  wrong  causes  nonpecuniary  injuries  that  the  jury 
have  the  widest  discretion  in  determining  the  amount  of  damages 
1o  be  awarded,  though  even  here,  as  will  be  presently  seen,  their 
discretion   is   not    wholly   arbitrary.     Nonpecuniary    injuries   most 

saCassell  v.  Hays,  51  111.  2G1;  Ray  v.  Jofliies,  86  Kj.  3G7.  5  S.  W.  SOT; 
Jacksonville,  T.  &  K.  W.  Ry.  Co.  v.  Roberts,  22  Fla    324. 

33  Suth.  Dam.  §  2,  cited  in  Parke  v.  Frank.  75  Cal.  3G4,  17  Pac.  427.  Where 
a  verdict  of  a  jury  rests  in  calculation,  and  they  fini  excessive  damages,  a 
new  trial  may  be  granted.     Nutter  v.  Railroad  Co.    13  Ind.  479. 

8<  It  is  the  duty  of  the  court  to  set  aside  a  verdict  which  is  palpablv  a^'ainst 
the  law  as  applied  to  the  facts  found.     McDonald  v.  Walter,  40  N.  Y.  551,  553. 

35  See  Lockwood  v.  Onion,  50  111.  50(5;  Wat-son  v.  Harmon.  .S5  Mo.  443,  447; 
Nicholson  v.  Couch,  72  Mo.  20'. i. 

3  0  See  ante,  p.  185.  In  trespass,  where  the  Jury  fail  to  give  the  enliro 
Talue  of  the  property  taken,  the  verdict  will  be  set  aside.  Porteous  v.  Hagol, 
Harp.  (S.  C.)  332. 


230  PLEADING    AND    PRACTICE.  (Ch.    8 

often  occur  in  cases  of  tort,  though  thoy  may  result  from  a  breach 
of  contract,  as,  for  instance,  breach  of  promise  of  marriage,  or  fail- 
ure to  deliver  a  telegram,  resulting  in  mental  suffering.  There  is  no 
measure  of  damages  possible  for  physical  pain  and  inconvenience,  or 
mental  suffering.  The  amount  of  money  which  shall  be  considered 
as  compensation  for  this  class  of  injuries  is  necessarily  left  to  the 
sound  discretion  of  the  jury.  The  court  can  merely  instruct  them 
what  elements  may  be  considered,  and  from  their  own  experience 
and  knowledge  they  must  determine  the  amount  to  be  awarded.^^ 

Setting  Aside  Verdicts. 

The  court  may  set  aside  a  verdict  when  it  is  against  the  weight 
of  evidence,  but  it  is  with  extreme  reluctance  that  the  power  is  exer- 
cised. A  verdict  will  not  be  disturbed  unless  it  is  against  the  de- 
cided preponderance  of  the  evidence,  or  is  based  on  no  evidence 
whatever.^*  Nor  will  it  be  disturbed  merely  because  the  jury — one 
or  all  of  them — have  reasoned  incorrectly.  "If  such  a  doctrine  were 
to  prevail,  scarcely  any  verdict  will  stand.  The  trial  by  jury  is  not 
founded  upon  a  supposition  so  absurd  as  that  the  whole  twelve  will 
reason  infallibly  from  the  premises  to  the  conclusion."  ^' 

Same — Excessive  and  Inadequate  Damages. 

Where  the  damages  awarded  by  a  jury  are  excessive  or  inade- 
quate, the  court,  in  the  exercise  of  a  sound  discretion,  may  set  the 
verdict  aside.  This  is  substantially  on  the  ground  that  the  verdict 
is  against  the  evidence.  The  discretion  of  the  court  is  not  arbi- 
trary. If  there  is  sufficient  evidence  to  support  the  verdict,  it  can- 
not be  set  aside.  When  the  injury  is  wholly  made  up  of  pecuniary 
elements,  it  is  usually  easy  to  see  w'hether  the  damages  awarded 

37  The  court  cannot,  merely  because  the  damages  are  at  large,  leave  the 
whole  matter  to  the  jury.  "It  must  instruct  them  as  to  the  proper  measure 
of  damages.  An  action  is  brought  against  a  railroad  company  for  wrongful 
refusal  of  admission  to  the  train.  The  jury  is  told  that  plaintiff  is  entitled 
to  such  damages  as  will,  under  all  the  circumstances,  compensate  him.  The 
verdict  cannot  stand.  'The  court  must  decide  and  instruct  the  Jury  in  re- 
spect to  what  elements  and  within  what  limits  damages  may  be  estimated 
in  the  particular  action.'  Baltimore  »!c  O.  R.  Co.  v.  Carr,  71  Md.  135,  17  Atl. 
1052.    See  Knight  v.  Egerton,  7  Exch.  407."    Sodg.  El.  Dam.  p.  142. 

5  8  See  Perry  v.  Robinson,  2  Tex.  490. 

3  0  Per  Maule,  .7.,  quoted  in  Sedg.  Dam.  §  i;j'JO. 


§§    92-93)  PROVINCE    OF    COURT    AKD    JURY.  231 

are  supported  by  the  evidence.""  In  many  actions  of  contract  the 
damages  may  be  calculated  with  almost  mathematical  certainty. 
Accordingly,  it  is  in  this  class  of  cases  that  verdicts  are  most  fre- 
quently set  aside.  But  even  in  cases  involving  nonpecuniary  in- 
juries, where  there  is  no  fixed  measure  of  damages,  and  the  auwunt 
is  necessarily  left  to  the  sound  discretion  of  a  jury,  the  court  may 
set  aside  the  finding  of  the  jury.  In  this  class  of  cases,  however, 
it  is  with  the  greatest  caution  and  reluctance  that  the  court  will 
interfere.*^  This  is  because  it  is  very  difiBcult  to  say,  in  this  class 
of  cases,  that  the  e\idence  does  not  support  the  verdict.  It  is  only 
in  the  clearest  cases  that  the  court  will  disturb  the  verdict.*^     "In 

4  0  See  Connelly  v.  McNeil,  2  Jones  (N.  C.)  51  (where  interest  was  wrong- 
fully allowed);  Havana,  R.  &  E,  R.  Co.  v.  Walsh,  85  111.  58  (where  a  counter- 
claim was  overlooked  in  estimating  damages).  See,  also,  Toledo,  P.  &  W.  R. 
Co.  V.  Patterson,  63  111.  304;  Kolb  v.  O'Brien,  8G  111.  210;  Farwell  v.  War- 
ren, 70  lU.  28;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hall.  53  Ark.  7,  13  S.  W.  13S; 
Cram  v.  Hadley,  48  N.  H.  191. 

41  "It  must  not  be  supposed,  however,  that  verdicts  in  cases  of  torts  are  be- 
yond control;  but  they  should  stand,  unless  they  are  grossly  erroneous,  or 
there  is  a  palpable  misconception  of  the  testimony,  or  thej'  are  the  result, 
plainly,  of  passion  or  prejudice."  City  of  Ottawa  v.  Sweely,  65  111.  434,  436. 
See,  also,  City  of  Galesburg  v.  Higley,  61  111.  287;  Scherpf  v.  Szadeozky,  4  E. 
D.  Smith,  110;  The  Commerce,  16  Wall.  33;  Murray  v.  Buell,  74  Wis.  14,  41 
N.  W.  1010;  Chicago  &  N.  W.  Ry.  Co.  v.  Peacock,  48  111.  253;  Weaver  v.  Page, 
6  Cal.  681  (!?15,000  for  malicious  prosecution  sustained);  Earth  v.  Merritt,  20 
Mo.  567;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Sponier,  85  Ind.  165;  Ohio  &  M. 
Ry.  Co.  V.  Judy,  120  Ind.  397,  22  N.  E.  252;  Wunderlich  v.  Mayor,  etc.,  of  New 
York.  33  Fed.  854;  Goodno  v.  City  of  Oshkosh,  28  Wis.  300;  Tennessee  Coal 
&  R.  Co.  V.  Roddy,  85  Tenn.  400,  5  S.  W.  286;  Goetz  v.  Ambs,  27  Mo.  28. 

■4  2  Whether  or  not  a  verdict  is  excessive  must  depend  upon  the  facts  of 
each  case.  Thus,  in  Missouri  Pac.  Ry.  Co.  v.  Poay,  7  Tex.  Civ.  A  pp.  400, 
26  S.  W.  768,  $4,000  was  held  not  excessive  for  ejection  from^  car.  Rut  in 
Ilardenbergh  v.  Railroad  Co.,  41  Minn.  200,  42  N.  W.  933.  $800  was  hold  ex- 
cessive for  ejection,  nnd  ijllOO  was  ordered  remitted.  !i;25,(X)0  is  not  excessive 
for  injuries  to  a  child.  Dunn  v.  Railroad  Co.,  35  Minn.  73,  27  N.  W.  448. 
.\or  to  a  man  rendered  a  hopeless  cripple  for  life.  Hall  v.  Railroad  Co.,  4(i 
Minn.  439,  49  N.  W.  239;  Wlllard  v.  Holmes  (Com.  PI.)  21  N.  Y.  Supp.  998. 
A  verdict  for  $60,000  for  false  iniprisonmont  lasting  35  days  was  held  ex- 
cessive. Kilburn  v.  Thompson.  4  M!U'.\rlhur,  401.  In  Smith  v.  Whit  tier, 
95  Cal.  279-2.S3,  30  Pac.  .529.  will  bo  found  a  collection  of  small  verdicts.  :in.! 
at  page  284,  95  Cal.,  and  page  529.  :\0  Vnc.  of  largo  vordlcts.  In  llio 
following  oases  verdicts  have  been  licld  not  excessive:     Knee  Imrt,  l)ni   ex- 


232  PLEADING    AND    PRACTICE.  (Ch.   8 

all  cases  where  there  is  no  rule  of  law  regulating  the  assessment 
of  damages,  and  the  amount  does  not  depend  on  computation,  the 
judgment  of  the  jury,  and  not  the  opinion  of  the  court,  is  to  govern, 
unless  the  damages  are  so  excessive  as  to  warrant  the  belief  that 
the  jury  must  have  been  influenced  by  partiality  or  prejudice,  or 
have  been  misled  by  some  mistaken  view  of  the  merits  of  the  case."  *^ 
The  court,  in  setting  aside  a  verdict  for  excessive  damages,  should 

ternal   recovery,   $5,000,    Coggswell   v.   Railway    Co.,   5   Wash.    46,   31   Pac. 
411.     Broken  rib  and  roughened  pleura,  $500,  Evans  v.  City  oi'  Huntington. 
37  W.  Va.  GDI,  10  S.  E.  801.     Broken  thigh,  $2,000,  McDowell  v.  The  France. 
53  Fed.  843.     Collar  bone  brokc?n  and  other  injuries,  $7,.o00,  Galveston,  II.  & 
S.  A.  R.  Co.  V.  Wesch  (Tex.  Civ.  App.)  21  S.  W.  313.     Right  arm  and  shoulder. 
$15,000,  Morgan  v.  Railroad  Co..  95  Cal.  501,  30  Pac.  001.     Displacement  of 
womb,  $15,000,  City  of  Chicago  v.  Leseth,  43  111.  App.  480.     Helpless  invalid 
for  life.  $15,000,  Sears  v.  Railroad  Co.,  6  Wash.  227,  33  Pac.  389.     Spinal  in- 
jury, $3,000,  Wabash  Western  Ry.  Co.  v.  Friedman,  41  111.  App.  270  (reversed 
on  another  point  [111.  Sup.]  30  N.  E.  353).      Finger  of  left  hand,  $2,750,  Haynes 
V.   Erk,  0  Ind.  App.  332,  33  N.   E.  027.    Permanent  injury  to  lung,  $5,000, 
Fordyce  v.  Culver,  2  Tex.  Civ.  App.  569,  22  S.  W.  237.     Broken  leg,  thereafter 
stiff  and  short,  $5,000,  Town  of  Fowler  v.  Linquist  (Ind.  Sup.)  37  N.  E.  133; 
$0,500,  Selleck  v.  J.  Laugdon  Co.,  59  Hun,  027,  13  N.  Y.  Supp.  858.     Broken 
skull,  crushed  hip,  and  damaged  urinary  organs,  $15,000,  Texas  &  P.  R.  Co.  v. 
Hohn,  1  Tex.  Civ.  App.  36,  21  S.  W.  942      Fracture  of  hip,  woman  of  00,  $5.- 
000,  City  of  Kansas  City  v.  Manning,  50  Kan.  373,  31  Pac.  1104.    Loss  of  limbs 
by  woman,  $23,000,  Erickson  v.  Railroad  Co.  (City  Ct.  Brook.)  32  N.  Y.  Supp. 
915.     Injury  to  eyes,  ears,  shoulder,  and  arm,  $3,000,  Sabine  &  E.  T.  R.  Co.  v. 
Ewing,  1  Tex.  Civ.  App.  531,  21  S.  W.  700.     Loss  of  eyes,  $10,000,  Mather 
v.  Rillston,  156  U.  S.  391,  15  Sup.  Ct.  464.     Amputation  of  left  arm,  etc.,  $10,- 
000.  Baltzer  v.  Railroad  Co.,  89  Wis.  257,  00  N.  W.  710.     In  cases  of  willful 
violence,  $9,000,  Townsend  v.  Briggs  (Cal.)  32  Pac.  307;    $2,000,  Wohlenberg 
V.  Melchert,  35  Neb.  803,  53  N.  W.  982.     Arm,  $10,000,  Flanders  v.  Railroad 
Co.,  51  Minn.  193,  53  N.  W.  544.     Loss  of  leg,  $25,000,  Ehrman  v.  Railroad 
Co.,  131  N.  Y.  .576.  .30  N.  E.  67.     Libel,  $45,000,  Smith  v.  Times  Co.,  4  Pa. 
Dist.  R.  399.    The  following  verdicts  have  been  held  excessive:    Foot.  $12,000, 
Kroener  v.  Railroad  Co.,  88  Iowa,  16,  55  N.  W.  28;  $3,000,  Kennedy  v.  Railroad 
Co.  (Minn.)  00  N.  W.  810.    Two  fingers,  $5,000.  Louisville  &  N.  R.  Co.  v.  Foley. 
94  Ky.  220,  21  S.  W.  806.     Fracture  of  smaller  bone  of  ankle.  $1,100,  Bron- 
son  V.  Railway  Co.,  07  Hun,  649,  21  N.  Y.  Supp.  095;    Louisville  &  N.  R.  Co. 
V.   Survant   (Ky.)   27   S.   W.   999.    Amputation   of  first  joint   of  left   thumb, 
$2,000,  Louisville  &  N.  R.  Co.  v.  Law  (Ky.)  21  S.  W.  048.    In  case  of  willful 
violence,  $5,000,  Roades  v.  Larson,  06  Hun,  035,  21  N.  Y.  Supp.  855.    For  dis- 
honor of  a  check,  $4.50,  Schaffner  v.  Ehrman  (111.  Sup.)  28  N.  E.  917. 
4  3  Worster  v.  Bridge  Co.,  10  Pick.  541. 


§§  92-93)  PROVINCE  OF  COURT  AND  JURY.  233 

clearly  see  that  tliev  are  excessive;  that  there  has  been  a  gross 
■error;  that  there  has  been  a  mistake  of  the  principles  upon  which 
the  damages  have  been  estimated,  or  that  some  improper  motive  or 
feelings  or  bias  has  influenced  the  minds  of  the  jury.  Upon  a 
mere  matter  of  damages,  where  different  minds  might  well  arrive 
at  different  conclusions,  and  there  is  nothing  inconsistent  with  an 
honest  exercise  of  judgment,  the  verdict  of  the  jury  should  not  be 
disturbed.**  "A  court  of  law  will  not  set  aside  a  verdict,  upon  the 
ground  of  excessive  damages,  unless  in  a  clear  case,  where  the  jury 
have  acted  upon  a  gross  mistake  of  facts,  or  have  been  governed  by 
«ome  improper  influence  or  bias,  or  have  disregarded  the  law."  *^ 
■"The  rule  so  carefully  maintained  and  guarded  in  actions  upon  con- 
tracts, and  for  tortious  injuries  to  property,  is  incapable  of  being 
applied  when  the  injury  is  to  the  person,  for  those  injuries  are  with- 
out precise  pecuniary  measure.  The  law  has,  accordingly,  in  this 
class  of  cases,  committed  the  detei-mination  of  the  amount  of  dam- 
ages to  be  awarded  to  the  experience  and  good  sense  of  jurors. 
And,  where  the  verdict  rendered  by  them  may  reasonably  be  pre- 
sumed to  have  resulted  from  an  honest  and  intelligent  exercise  of 
judgment  upon  their  part,  the  policy  of  the  court  is,  and  necessarily 
must  be,  not  to  interfere  with  their  conclusion."  *® 

Where  the  damages  found  by  a  jury  are  inadequate  the  verdict 
will  be  set  aside,  on  the  same  principles  that  apply  when  the  dam- 
ages are  excessive.  It  has  been  held  that  in  actions  of  tort,  as  a 
general  rule,  the  verdict  will  not  be  set  aside  because  the  damages 
were  too  small.^^  But  the  rule  is  now  established  otherwise.*"  "A 
verdict  for  a   grossly  inadequate  amount  stands   upon  no  higher 

4*  Thurston  v.  Martin,  5  Mason,  497,  Fed.  Cas.  No.  14,018. 

*5  Wiggin  v.  Coffin,  3  Story,  1,  Fed.  Cas.  No.  17,624.  See,  also,  Gilbert  v. 
Burtenshaw,  Cowp.  230;  Whipple  v.  Manufacturing  Co.,  2  Story,  GGl,  Fed.  Cas. 
No.  17,516;   Harris  v.  Railroad  Co.,  35  Fed.  116. 

46  Walker  v.  Railway  Co..  63  Barb.  260.  207. 

*7  Howard  v.  Barnard,  11  C.  B.  653;  Hayward  v.  Newton,  2  Strange,  940; 
jMTd  Townsend  v.  Hughes,  2  Mod.  150;  Barker  v.  Dixie,  2  Strange,  1051.  Of. 
Pritchard  v.  Hewitt,  91  Mo.  .547,  4  S.  W.  437. 

4  8  Beattie  v.  Moore,  L.  R.  2  Ir.  28,  31;  Robinson  v.  Town  of  Waupaca,  77 
Wis.  544,  46  N.  W.  809;  Pritchard  v.  Hewitt,  9  Mo.  547,  4  S.  W.  437;  Watsmi 
V.  Harmon,  85  Mo.  443;    Caldwell  v.  Railroad  Co.,  41  La.  Ann.  CL'I.  6  South, 


234  PLEADING    AND    PKACTICE.  (Ch.    8- 

ground  in  legal  principle,  nor  in  the  rules  of  law  or  justice,  than  a 
verdict  for  an  excessive  or  extravagant  amount.  It  is  doubtless  true 
that  instances  of  the  former  occur  less  frequently,  because  it  is  less 
frequently  possible  to  make  it  clearly  appear  that  the  jury  have 
grossly  erred.  But,  when  the  case  does  plainly  show  the  result, 
justice  as  plainly  forbids  that  the  plaintiff  should  be  denied  what 
is  his  due  as  that  the  defendant  should  pay  what  he  ought  not  to  be 
charged."  *'  It  was  accordingly  held  that  a  verdict  for  the  plaintiff 
for  a  sum  far  less  than  he  was  entitled  to  recover  under  any  evidence 
in  the  case,  provided  he  was  entitled  to  recover  at  all,  would  be  set 
aside,  on  application  of  the  plaintiff,  although,  upon  the  evidence, 
a  verdict  for  the  defendant  would  not  have  been  disturbed.^" 

"V\Tiere  the  verdict  is  excessive  the  plaintiff  may  frequently  cure 
the  error  by  remitting  the  excess.  Where  an  item  of  damage  has 
been  erroneously  included  in  the  estimate  by  the  jury,  the  error  may 
be  cured  by  remitting  the  amount  allowed  for  such  item,  provided 
it  can  be  definitely  ascertained;  °^  otherwise  not.^^  In  the  case  of 
nonpecuniary  injuries,  where  the  verdict  of  the  jury  is  final,  unless 
it  shows  that  the  jury  were  influenced  by  partiality,  prejudice,  or 
passion,  the  plaintiff  has  been  pennitted  to  remit  enough  to  prevent 
the  verdict  from  being  excessive.  It  is  a  common  practice  for  both 
trial  and  appellate  courts  to  indicate  the  amount  by  which  they 
deem  the  verdict  excessive,  and  require  the  plaintiff  to  remit  it,  as 

49  McDonald  v.  Walter,  40  N.  Y.  551,  554. 

50  Id.  A  verdict  awarding  nominal  damages  for  a  serious  personal  injury- 
will  be  set  aside.  Beattie  v.  Moore,  L.  R.  2  Ir.  28;  Robbins  v.  Railroad  Co.,  T 
Bosw.  1;  Falvey  v.  Stanford,  L.  R.  10  Q.  B.  54.  Cf.  Richards  v.  Rose,  9  Excli.218. 
See,  also,  Richards  v.  Sandford,  2  E.  D.  Smith,  849;  Alloway  v.  City  of  Nash- 
ville, 88  Tenn.  510,  13  S.  W.  123  (interest  added  on  appeal);  Howard  v.  Bar- 
nard, 11  C.  B.  G53.  In  Phillips  v.  Railway  Co.,  5  Q.  B.  Div.  78,  a  verdict  for 
£7,000  was  set  aside  as  inadequate.  On  the  second  trial  a  verdict  for  £10,000' 
was  held  not  excessive.     5  C.  P.  Div.  280. 

61  Toledo,  W.  &  W.  Ry.  Co.  v.  Beals,  50  111.  150;  Strong  v.  Hooe,  41  Wis. 
059;  Kavanaugh  v.  City  of  Janesville,  24  Wis.  CIS;  Evertson  v.  Sawyer,  2 
Wend.  507;  Howard  v.  Grover,  28  Me.  97;  Lambert  v.  Craig,  12  Pick.  199  j 
King  v.  Howard,  1  Cush.  137;  Pendleton  St.  R.  Co.  v.  Rahmann,  22  Ohio  St. 
446.     Cf.  Kennon  v.  Gilmer,  131  U.  S.  22,  9  Sup.  Ct.  G96. 

s2  Pavey  v.  Insurance  Co..  56  Wis.  221.  13  N.  W.  925;  Smith  v.  Dukes,  5 
Minn.  373  (Gil.  301).  See,  also,  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hall,  53  Ark. 
7,  13  S.  W.  138;   Hodapp  v.  Sharp,  40  Cal.  G9;    Lambert  v.  Craig,  12  Pick.  199. 


§§    92-93)  PROVINCE    OF    COURT   AND    JURY.  235' 

a  condition  of  refusing  a  new  trial."  It  is  a  grave  question  whether 
this  practice  does  not  deprive  the  parties  of  the  right  to  trial  by 
jury,  and  it  would  seem  to  be  an  invasion  of  the  province  of  the 
jury,°*  but  the  practice  is  supported  by  the  weight  of  authority.'*'* 

Exemplary  Damages. 

It  is  a  question  for  the  court  to  determine  whether  there  is  any 
evidence  to  support  a  verdict  for  exemplary  damages.  ^^  It  is  a 
question  for  the  jury  to  determine  whether  exemplary  damages  shall 
be  awarded.^^  It  is  error  to  instruct  the  jury  to  give  exemplary 
damages."*     It  is  error  to  submit  the  question  to  them  where  there 

B3  Upham  V.  Dickinson,  50  111.  97;  Jolinson  v.  Von  KetUer,  66  111.  63;  Duffy 
V.  City  of  Dubuque,  G3  Iowa,  171,  18  N.  W.  900;  Collins  v.  City  of  Council 
Bluffs.  35  Iowa,  432;  Hegeman  v.  Railroad  Corp.,  13  N.  Y.  9;  Diblin  v.  Mur- 
phy, 3  Sandf.  19;  Whitehead  v.  Kennedy,  69  N.  Y.  402,  470;  Spicer  v.  Rail- 
way Co.,  29  Wis.  580;  Holmes  v.  Jones,  121  N.  Y.  461,  24  N.  E.  701;  Corcoran 
V.  Harran,  55  Wis.  120,  12  N.  W.  468;  Patten  v.  Railway  Co.,  32  Wis.  524; 
Baker  v.  City  of  Madison,  62  Wis.  137,  22  N.  W.  141,  583;  Van  Winter  v. 
Henry  Co.,  61  Iowa,  684,  17  N.  W.  94;  Lombard  v.  Railroad  Co.,  47  Iowa, 
494;  Johnston  v.  Morrow,  60  Mo.  339.  See  Gardner  v.  Tatum,  81  Cal.  370, 
22  Pac.  880. 

64  See  dissenting  opinions  in  Burdict  v.  Railway  Co.,  123  Mo.  221,  27  S.  AV. 
453.  See,  also,  Suth.  Dam.  §  460;  Sherry  v.  Frecking,  4  Duer,  452;  Koeltz 
V.  Bleckman.  46  Mo.  320;  Leeson  v.  Smith  4  Nev.  &  Man.  304;  Savannah, 
F.  &  W.  Ry.  V.  Harper,  70  Ga.  119;  Carlisle  v.  Callahan,  78  Ga.  320,  2  S.  E. 
751;  Craig  v.  Cook,  28  Minn.  238,  9  N.  W.  712;  Potter  v.  Railroad  Co.,  22 
Wis.    586. 

6  5  Baker  v.  City  of  Madison,  62  Wis.  137,  22  N.  W.  141,  583;  Pratt  v.  Pio- 
neer Press  Co.,  35  Minn.  251,  28  N.  W.  708;  Hutchius  v.  Railway  Co.,  44  Minn. 
5,  46  N.  W.  79;  Town  of  Union  v.  Durkes,  38  N.  J.  Law,  21;  Missouri  Pac. 
Ry.  Co.  V.  Dwyer,  36  Kan.  58,  12  Pac.  352;  Hopkins  v.  Orr,  124  U.  S.  510,  8 
Sup.  Ct.  590;  Arkansas  Val.  Land  &  Cattle  Co.  v.  Mann,  130  U.  S.  69,  9  Sup. 
Ct.  458. 

68  Philadelphia  Traction  Co.  v.  Orbann,  119  Pa.  St.  37,  12  Atl.  816;  Pitts- 
burgh S.  Ry.  Co.  V.  Taylor,  104  Pa.  St.  306;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 
Scurr.  59  Miss.  456;    Selden  v.  Cashman,  20  Cal.  50. 

87  Nagle  V.  Mullison,  34  Pa.  St.  48;  Graham  v.  Railroad  Co.,  66  Mo.  536; 
Chicago,  St.  L.  &,  X.  O.  Ry.  Co.  v.  Scurr,  .19  Miss.  450;  Johnsou  v.  Siuilh,  64 
Me.  553;  Smith  v.  Thompson,  55  Md.  5;  Pratt  v.  I'.ukI,  12  Couu.  318;  Dye  v. 
Denham,  54  Gn.  224. 

68  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Rector,  lol  ill.  2;m;;  llnwk  v.  IMdg- 
way,  33  111.  473;  New  Orleans,  St.  L.  &  C.  R.  Co.  v.  liurkc.  .".3  .Miss.  2(»0;  South- 
ern R.  Co.  V.  Kendrick,  40  Miss.  374;   Louisville  &  N.  R.  Co.  v.  Brooks'  Adni'.x, 


236  PLEADING    AND    PKACTICE.  (Cil.   S 

is  no  evidence  to  support  a  verdict  for  exemplary  damages.^" 
A  Terdict  for  exemplary  damages  may  be  set  aside  when  it  is 
clearly  excessive.*"  The  court  proceeds  on  the  same  principle  as 
in  other  cases  of  excessive  damages.  The  verdict  will  be  set  aside 
only  when  it  is  grossly  excessive,  or  the  jury  acted  under  the  in- 
fluence of  passion,  prejudice,  or  some  other  improper  motive.'^ 

«3  Ky.  120;  Boardman  v.  Goldsmith,  48  Vt.  403;  Snow  v.  Carpenter,  49  Vt. 
420.  Contra,  Mayer  v.  Duke,  72  Tex.  445,  10  S.  W.  5G5.  An  instruction  tliat 
"this  is  one  of  tJie  cases  wliere  ttiey  may  give  exemplary  damages"  was  held 
erroneous,  where  the  facts  were  in  dispute.  Pickett  v.  Crook,  20  Wis.  358. 
Under  Code  Iowa,  §  1557,  providing  that  the  person  injured  in  her  means  of 
support  by  the  intoxication  of  another  shall  have  a  right  of  action,  against  the 
person  selling  the  liquor,  "for  all  damages  actually  sustained,  as  well  as  ex- 
emplary damages,"  it  was  held  proper  to  instruct  the  jury  that,  if  plaintiff 
was  entitled  to  actual  damages,  it  was  their  duty  to  add  thereto  an  amount  as 
exemplary  damages.  Thill  v.  Pohlmau,  7(1  Iowa,  638,  41  N.  W.  385.  See, 
also.  Fox  V.  Wuuderlich,  64  Iowa,  187.  20  X.  W.  7.  So  an  instruction  that,  if 
au  assault  was  accompanied  by  certain  aggravating  circumstances,  the  jury 
ought  to  give  exemplary  damages,  was  held  not  erroneous.  Hooker  v.  New- 
ton, 24  Wis.  292.  An  instruction  that  the  jury  cannot  give  vindictive  damages 
"unless  they  believe,  from  the  evidence,  that  the  defendants  maliciously  en- 
tered upon  plaintiff's  land  in  a  rude,  aggravating,  or  insulting  manner,"  is  er- 
roneous, because  it  improperly  restricts  the  str.ndard  of  liability.  De  Vaughn 
V.  Heath,  37  Ala.  595. 

6  9  See  cases  cited  in  note  56,  supra. 

GO  With  this  limitation,  the  amount  of  exemplary  damages  Is  discretionary 
with  the  jury.  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Scurr,  59  Miss.  456;  Borland 
V.  Barrett.  76  Va.  128. 

61  Cutler  v.  Smith,  57  111.  252;  Farwell  v.  Warren,  70  111.  28;  Collins  v.  City 
of  Council  Bluffs,  35  Iowa.  432;  Goetz  v.  Ambs,  27  Mo.  28;  Rogers  v.  Henry, 
32  Wis.  327;  Borland  v.  Barrett,  76  Va.  128:  Flannery  v.  Railroad  Co.,  4  Mac. 
111.  See,  also,  Bryan  v.  Acee,  27  Ga.  87;  Willis  v.  McNeill,  57  Tex.  465.  In 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Hurst,  36  Miss.  660,  a  verdict  of  $4,500 
against  a  railroad  company  for  carrying  plaintiff  400  yards  beyond  a  station 
and  refusing  to  return  was  sustained.  In  Burkett  v.  Lanata,  15  La.  Ann.  337, 
It  is  said:  "Exemplary  damages  should  nevertheless  be  commensurate  to  the 
nature  of  the  offense,  and  when  extravagant  damages  are  allowed  they  will 
be  reduced  to  their  proper  standard." 


§§   94-96)         BREACH    OF    CONTRACTS    FOR    SALE   OF   GOODS.  237 

CHAPTER  IX. 

BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS. 

94-96.    Action    by   Seller— Where   Property    has    not    Passed— Damages    for 
Nonacceptance. 
97.  Where  Property  has  Passed— Damages  for  Nonpayment. 

98-99.    Action  by  Buyer— Damages  for  Nondelivery. 

100.  Damages  as  for  Conversion. 

101.  Damages  for  Breach  of  Warranty. 

ACTION  BY  SELLER— WHERE  PROPERTY  HAS  NOT  PASSED 
—DAMAGES  FOR  NONACCEPTANCE. 

94.  If  the  buyer  ■wrongfully  neglects  or  refuses  to  accept 

and  pay  for  the  goods,  the  seller  may  maintain  an 
action  against  him  for  damages  for  nonacceptance. 

95.  Where  the  price  is  payable  on  a  day  certain  irrespec- 

tive of  delivery,  and  the  buyer  -wrongfully  neg- 
lects or  refuses  to  pay  such  price,  the  seller  may 
maintain  an  action  for  the  price,  although  the  prop- 
erty in  the  goods  has  not  passed. 

96.  The  measure  of  damages  for  nonacceptance  is  the  es- 

timated loss  directly  and  naturally  resulting  from 
the  breach  of  contract  in  the  natural  course  of 
events,  and,  "when  there  is  an  available  market  for 
the  goods,  is  prima  facie  to  be  ascertained  by  the 
difference  bet-ween  the  contract  price  and  the 
market  price  at  the  agreed  time  and  place  of  deliv- 
ery. 

When  the  property  in  the  goods  has  not  passed,  as  where  the  con- 
tract is  for  the  sale  of  unascertained  goods  or  of  goods  which  are 
not  in  a  deliverable  state,  the  buyer's  breach  of  his  promise  to  ac- 
cept and  pay  for  thera  can  only  affect  the  seller  by  way  of  damages. 
The  goods  are  still  his.      Ue  may  resell  them  or  not,  at  his  pleasure. 


238  BREACH  OF  CONTUACTS  FOR  SALE  OF  GOODS.        (Ch.  9 

His  onlj  remedy,  therefore,  is  an  action  against  the  buyer  for  non- 
acceptance.^  To  this  general  rule  there  is  only  the  one  exception, 
which  has  been  above  stated,  that,  if  by  the  terms  of  the  contract 
the  price  is  payable  irrespective  of  delivery,  the  seller  may  sue  f.»r 
the  price  at  the  time  agreed  upon,  leaving  the  buyer  to  his  cross 
action  in  case  the  seller,  after  receiving  the  price,  should  fail  to  de- 
liver the  goods.^ 
Damages  for  Nonacceptance. 

The  proper  measure  of  damages  for  nonacceptance  is  generally  the 
difference  between  the  contract  price  and  the  market  price  at  the 
place  of  delivery  at  the  time  when  the  contract  is  broken,  because 
the  seller  may  take  his  goods  into  the  market,  and  obtain  the  cur- 
rent price  for  them.^  If  the  goods  have  no  market  price,  the  dam- 
ages must,  of  course,  be  otherwise  ascertained ;  *  and  if  they  have 
no  money  value  the  measure  of  damages  would  be  equal  to  the 
whole  contract  price. '^  The  date  at  which  the  contract  is  deemed 
to  be  broken  is  that  fixed  by  the  contract  for  the  delivery,  and  not 
that  at  which  the  buyer  may  give  notice  that  he  intends  to  break 
the  contract  and  refuse  accepting  the  goods.*     If  the  contract  Is  for 

1  Laird  v.  Pirn,  7  Mees.  &  W.  474.  478;  Collins  v.  Delaporte,  115  Mass. 
159,  162;  Gordon  v.  Norris,  49  N.  H.  37(J;  Daufortli  v.  Walker,  37  Vt  239; 
Atwood  T.  Lucas,  53  Me.  508;  Brand  v.  Henderson,  107  111.  141;  Gansou 
V.  Madigan,  13  Wis.  G8;  Chapman  v.  Ingram,  30  Wis.  290,  294;  Peters  t. 
Cooper,  95  Mich.  191.  .j4  N.  \V.  WU:    Bonj.  Sales,  §  758. 

2  Dunlop  v.  Grote,  2  Car.  &.  K.  153. 

3  Barrow  v.  Arnaud,  8  Q.  B.  595,  608,  per  Tindal,  C.  J.  See,  also.  Tufts  v. 
Bennett,  163  Mass.  398,  40  N.  E.  172;  Cherry  Valley  Iron  Works  v.  Flor- 
ence Iron  R.  Co.,  12  C.  C.  A.  306,  64  Fed.  569;  Gray  v.  Railroad  Co.,  82  Hun, 
523,  31  N.  Y.   Supp.  704. 

*  Chicago  V.  Greer,  9  Wall.  726;  McCormick  v.  Hamilton,  23  Grat.  561. 
Where  there  was  no  market,  the  proper  measure  of  damages  was  the  actual 
loss  which  the  sollers,  acting  as  roasoimble  men  in  the  ordinary  course  of 
business,  had  sustained.  Dunkirk  Colliery  Co.  v.  Lever,  9  Ch.  Div.  20,  25. 
Where  an  article  has  no  market  value,  an  investigation  into  the  constituent 
elements  of  the  cost  to  the  party  who  contracted  to  furnish  it  becomes  neces- 
sary, and  that  cost,  compared  with  the  contract  price,  will  afford  the  meas- 
ure of  damages.     Masterton  v.  Mayor,  etc.,  7  Hill,  61. 

5  Allen  V.  .Jarvis.  20  Conn.  38.     Cf.  Chicago  v.  Greer,  9  Wall.  726. 

«  Boorman  v.  Nash,  9  Barn.  &,  C.  145;    Phillpotts  v.  Evans,  5  Mees.  &  W. 


§§  91-96)       ACTION  BY  SELLER DAMAGES  FOR  NON ACCEPTANCE.  239 

the  sale  of  goods  to  be  manufactured,  or  otherwise  procured  by  the 
seller,  and  the  buyer  refuses  to  accept  or  gives  notice  that  he  in- 
tends to  refuse  acceptance,  so  that  the  seller  is  excused  from  pro- 
curing and  tendering  the  goods,  he  will  be  entitled  to  such  damages 
as  will  put  him  in  the  same  position  as  if  he  had  been  permitted  to 
complete  the  contract.''  Thus  where  the  contract  was  for  the  sale 
of  rails  to  be  rolled  by  the  seller,  "and  to  be  drilled  as  he  may  be 
directed,"  at  $58  per  ton,  and  the  buyer  refused  to  give  directions 
for  drilling,  and  at  his  request  the  seller  delayed  rolling  until  after 
the  time  prescribed  for  their  delivery,  and  then  the  buyer  advised 
the  seller  that  he  should  decline  to  take  any  of  the  rails  under  the 
contract,  it  was  held  that  the  seller  was  not  bound  to  roll  the  rails 
and  tender  them,  and  that  the  proper  rule  of  damages  was  the  dif- 
ference between  the  cost  per  ton  of  making  and  delivering  the  rails 
^nd  |58.« 

When  the  contract  is  for  the  sale  of  a  chattel  to  be  made  to  order, 
there  is  a  conflict  of  authority  as  to  whether  the  property  passes  ou 
completion,  or  whether  acceptance  by  the  buyer  is  essential  to  the 
appropriation;  and  in  such  cases,  whether  an  action  can  be  main- 
tained for  the  pfice  or  whether  the  seller  is  confined  to  an  action 
for  damages  for  nonacceptance  will  depend  on  the  rule  adopted  in 
the  particular  jurisdiction  as  to  what  is  necessary  to  transfer  the 
propert}'. 

475;  Tbompson  v.  Alger,  12  Mete.  (Mass.)  428,  443;  Scbramm  v.  Boston 
Sugar-Refining  Co.,  14G  Mass.  211,  15  N.  E.  571;  Gordon  v.  Norris,  49  N.  H. 
376;  Girard  v.  Taggart,  5  Serg.  &  R.  19;  Dana  v.  Fiedler,  12  N.  Y.  40;  Camp 
V.  Hamlin,  55  Ga.  259;  Williams  v.  Jones,  1  Bush,  G21;  Pittsburgh,  C.  & 
St.  K  Ry.  Co.  V,  Heck,  50  Ind.  303;  Sanborn  v.  Benedict,  78  111.  309;  Kadish 
T.  Young,  108  111.  170. 

7  Cort  V.  Ambergate  N.  &  B.  &  E.  J.  Ry.  Co.,  17  Q.  B.  127,  20  Law  J.  Q 
B.  460;  Hinckley  v.  Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  264,  7  Sup 
Ct.  875;  Black  River  Lumber  Co.  v.  Warner,  93  Mo.  374,  6  S.  W.  210 
Muskegon  Curtain-Roll  Co.  v.  Keystone  Manuf  g  Co.,  135  Pa.  St.  132,  19  Atl 
1008;  Hosmer  v.  Wilson,  7  Mich.  295;  Haskell  v.  Hunter,  23  .Mich.  305;  But 
ler  V.  Butler,  77  N.  Y.  472. 

•  Hinckley  v.  Pittsburgh  Bessemer  Steel  Co.,  121  U.  S.  264,  7  Sup.  Ct.  875. 


240  BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS.        (Ch.  9 


SAME— WHERE  PROPERTY  HAS  PASSED— DAMAGES  FOR 
NONPAYMENT. 

97.  Where,  under  a  contract  of  sale,  the  property  in  the 
goods  has  passed  to  the  buyer,  and  he  -wrongfully 
neglects  or  refuses  to  pay  for  them  according  to 
the  terms  of  the  contract,  the  seller  may  maintain 
an  action  against  him  for  the  price  of  the  goods.'-' 

When  the  property  in  the  goods  has  passed,  unless  the  sale  is  on 
credit  or  payment  is  made  to  depend  on  some  contingency,  the  seller 
may  maintain  an  action  for  the  price.^°  If  the  sale  is  on  credit, 
he  must,  of  course,  await  the  termination  of  the  credit  before  bring- 
ing suit,^^  And  if  the  price  is  payable  by  a  bill  or  other  security, 
and  the  security  is  not  given,  the  seller  cannot  sue  for  the  price 
until  the  bill  would  have  matured,  though  he  may  sue  at  once  for 
damages  for  breach  of  the  agreement,  in  which  case  the  measure  of 
his  damages  will  be  prima  facie  the  amount  of  the  sum  to  be  se- 
cured.^- 

In  England  it  is  held  that  the  seller  is  not  entitled,  under  any 
circumstances,  to  rescind  the  contract  for  default  in  the  payment  of 
the  price;  ^^  but  in  this  country  it  has  been  frequently  declared  that 
the  unpaid  seller,  who  is  in  possession  of  the  goods,  has,  among 
other  remedies,  the  right  to  keep  the  goods  as  his  own,  and  recover 

»  Chalm.  Sale,  §  51. 

10  Scott  V.  England.  2  Dowl.  &  L.  520;  Stearns  v.  Washburn,  7  Gray,  187, 
189;  Morse  v.  Sherman,  100  Mass.  430;  Frazier  v.  Simmons,  139  Mass. 
531,  533,  2  N.  E.  112;  Hay  den  v.  Demets,  53  N.  Y.  420;  Doremus  v.  Howard, 
23  N.  J.  Law,  390;  Armstrong  v.  Tm-ner,  49  Md.  589;  Ganson  v.  Madigan, 
13  Wis.  07. 

11  Calcutta  &  B.  Steam  Nav.  Co.  v.  De  Mattos,  32  Law  J.  Q.  B.  (N.  S.) 
at  page  328;  Keller  v.  Strasberger,  90  N.  Y.  379;  Dellone  v.  Hull,  47  Md. 
112.  Mere  insolvency  of  one  of  the  parties  is  not  equivalent  to  a  rescission 
or  a  breach.  It  simply  relieves  the  seller  from  his  agreement  to  give  credit. 
Pardee  v.  Kanady,  100  N.  Y.  121,  126,  2  N.  E.  885.  Cf.  New  England  Iron 
Co.  V.  Gilbert  Elevated  R.  Co.,  91  N.  Y.  153,  168. 

12  Paul  v.  Dod,  2  C.  B.  800;  Rinehart  v.  Olwiue,  5  Watts  &  S.  157;  Hanna 
v.  Mills,  21  Wend.  90;  Barron  v.  MuUin,  21  Minn.  374.  But  see  Foster  v. 
Adams,  60  Vt  392,  15  Atl.  109. 

13  Martindale  v.  Smith,  1  Q.  B.  389, 


§§    98-99)       ACTION    BY    BUYER DAMAGES    FOR   NONDELIVERY.  241 

the  difference  between  the  market  price  at  the  time  and  place  of 
delivery  and  the  contract  price.^* 


ACTION  BY  BUYER— DAMAGES  FOR  NONDELIVERY. 

98,  Where  the  seller  -w^rongfully  neglects  or  refuses  to  de- 

liver the  goods  to  the  buyer,  the  buyer  may  main- 
tain an  action  against  the  seller  for  damages  for 
nondelivery. 

99.  The  measure  of  damages  is  the  estimated  loss  directly 

and  naturally  resulting  from  the  seller's  breach  of 
contract,  and,  when  there  is  an  available  market 
for  the  goods  in  question,  is  prima  facie  to  be  as- 
certained by  the  difference  bet-ween  the  contract 
price  and  the  market  price  of  the  goods  at  the 
agreed  time  and  place  of  delivery.^'* 

The  breach  of  contract  of  which  the  buyer  complains  may  arise 
from  the  seller's  default  in  delivering  the  goods,  or  from  some  defect 
in  the  goods  delivered.  There  may  be  a  breach  of  the  principal 
contract  for  the  transfer  of  the  property  and  the  delivery  of  posses- 
sion or  of  a  collateral  contract  of  warranty. 

Damages  for  Nondelivery. 

Before  the  property  has  been  transferred  to  the  buyer,  his  only 
remedj"  is  an  action  for  breach  of  contract.  If  he  has  paid  the 
price,  and  the  goods  are  not  delivered,  he  may  rescind  the  contract, 
and  recover  what  he  has  paid  upon  an  implied  contract  in  an  action 
for  money  had  or  received.^'-  If  he  has  not  paid  the  price,  his  only 
remedy,  wheT^e  the  seller  fails  to  deliver,  is  to  sue  for  damages  for 

li  Dustan  v.  McAndrew,  44  N.  Y.  73;  Hay  den  v.  Denicts,  53  N.  Y.  42(i; 
Mason  v.  Decker,  72  N.  Y.  595;  Van  Brocklen  v.  Smeallie,  140  N.  Y.  70,  35 
N.  E,  415;  BaiT  v.  Logan,  5  Har.  (Del.)  52;  Young  v.  Mertcns,  27  Md.  114, 
126;  Cook  V.  Brandeis,  3  Mete.  (Ky.)  555;  Bagley  v.  Findlay,  82  III.  524; 
Ames  V,  Moir,  130  111.  582,  22  N.  E.  .^.35.  See.  also,  Putnam  v.  Gliddeu,  159 
Mass.  47,  34  N.  E.  81. 

1  c  See  Chalm.  Sale,  §  53. 

»•  Nash  V.  Towne,  5  Wall.  G89;    Clevolimd  v.  Storrott,  70  Pa.  St.  204. 

LAW  DAM.— 16 


242  BREACH  Of  CONTRACTS  FOR  SALE  OF  GOODS.        (Ch.  9 

breach  of  the  contract.  His  position  is  the  converse  of  that  of  the 
seller  who  is  suing  the  buyer  for  nonacceptance.  He  has  the  money 
in  his  hands,  and  may  go  into  (he  market  and  buy.  The  loss  which 
he  sustains  by  the  nondelivery  of  the  goods  is  therefore,  under  ordi- 
nary circumstances,  simply  the  difference  between  the  contract  price 
and  the  market  price  of  the  goods  at  the  time  and  place  of  delivery, 
and  this  is  the  measure  of  his  damages.^^  If  he  has  prepaid  the 
price,  he  may  still  sue  for  nondelivery,  and  is  entitled  to  recover  the 
market  price  of  the  goods  without  deduction.^*    If  there  is  no  differ- 

iT  Barrow  v.  Arnaud,  8  Q.  B.  604,  at  page  609;  Shaw  v.  Nudd,  8  Pick.  9; 
Dana  v.  Fiedler,  12  N.  Y.  40;  Cahen  v.  Piatt.  69  N.  Y.  348;  Fessler  v.  Love, 
48  Pa.  St.  407;  Kribs  v.  Jones,  44  Md.  390;  Miles  v.  Miller,  12  Bush,  134; 
McKercher  v.  Curtis,  35  Mich.  478;  Cocliburn  v.  Ashland  Lumber  Co.,  54 
Wis.  G19,  12  N.  W.  49;  McGrath  v.  Gegner,  77  Md.  331,  26  Atl.  502;  Olson 
y.  Shai'ples,  53  Minn.  91,  55  N.  W.  125;  Hewson-Herzog  Supply  Co.  v.  Min- 
nesota Brick  Co.,  55  Minn.  530,  57  N.  W.  129.  In  case  of  a  total  failure  to 
deliver,  the  buyer  may  recover  the  amount  with  which  he  could  have  pur- 
chased machines  of  equal  value.  If  those  delivered  were  defective,  the 
measure  of  his  damages  is  the  cost  of  supplying  the  deficiency.  Marsh  v. 
McPherson,  105  U.  S.  709.  See,  also,  Stillwell  &  Bierce  Manuf'g  Co.  v. 
Phelps,  130  U.  S.  520,  9  Sup.  Ct.  601.  When  the  market  value  is  unnaturally 
inflated  by  unlawful  means,  it  is  not  the  true  test  Kountz  v.  Kirkpatrick, 
72  Pa.  St.  376.  Where  goods  are  purchased  to  be  shipped  abroad,  and 
the  fact  is  known  to  the  seller,  and  it  is  impossible  for  the  buyer  to  dis- 
cover the  inferiority  of  the  goods  till  they  reach  their  ultimate  destination, 
the  measure  of  damages  is  the  diffei-ence  between  the  market  price  of  the 
goods  contracted  for  at  the  date  of  arrival  and  the  price  afterwards  realized 
on  a  sale  of  the  goods,  with  costs  and  expenses  of  sales.  Camden  Consoli- 
dated Oil  Co.  V.  Schlens,  59  Md.  31.  Where  a  job  lot  of  chattels  is  sold,  and 
the  vendor  has  title  only  to  part,  the  measure  of  damages  is  the  difference 
between  the  value  of  the  entire  lot  sold  and  the  value  of  the  lot  without  those 
as  to  which  the  title  failed.  Hoffman  v.  Chamberlain,  40  N.  J.  Eq.  663,  5 
Atl.  150.  In  an  action  for  breach  of  contract  to  deliver  goods  sold,  defend- 
ant can  show  the  actual  cost  to  the  plaintiff  of  the  goods  which  plaintiff 
bought  from  other  parties  to  fill  his  orders  for  the  goods  purchased.  Theiss 
V.  Weiss,  166  Pa.  St.  9,  31  Atl.  63. 

18  Startup  V.  Cortazzi,  2  Cromp.,  M.  &  R.  165;  Smethurst  v.  Woolston,  5 
Watts  &  S.  106;  Humphreysville  Copper  Co.  v.  Vermont  Copper  Min.  Co., 
33  VL  92.  Some  courts  ;jl11ow  the  buyer  to  recover  the  highest  market  price 
between  the  breach  and  the  action.  Clark  v.  Pinuey,  7  Cow.  681;  Gilmaa 
v.  Andrews,  66  Iowa,  116.  23  N.  W.  291;  Suydam  v.  Jenkins,  3  Sandf.  614; 
Benj.  Sales  (Bennett's  6th  Am.  Ed.)  901,  note. 


§§    98-99)       ACTION    BY    BUYER DAMAGES    FOR    NONDELIVERY.  243 

ence  between  the  contract  price  and  the  market  price,  he  is  entitled 
only  to  nominal  damages.^* 

Even  if  the  seller  repudiates  the  contract  before  the  date  of  de- 
livery, so  that  the  buyer  may  sue  at  once,  the  damages  are  to  be 
assessed  as  of  the  agreed  date  of  delivery,  unless  it  appears  that 
the  buyer  could  have  supplied  himself  in  the  market  on  such  terms 
as  to  mitigate  his  loss.^"  But,  if  the  time  of  delivery  is  extended 
at  the  seller's  request,  damages  will  be  assessed  according  to  the 
market  price  at  the  date  to  which  delivery  is  postponed.^^ 

Damages  lohere  there  is  no  Market  Price. 

To  the  rule  of  market  price  there  are  some  exceptions,  depending 
on  particular  circumstances.  The  goods  may  have  no  market  price 
at  the  place  of  delivery  for  lack  of  a  market,  in  which  case  the 
market  value  may  be  determined  by  ascertaining  the  market  price 
in  the  nearest  available  market,  and  adding  the  expense  of  fetch- 
ing the  goods  to  the  place  of  delivery;  ^^  or,  if  there  is  no  available 
market,  the  market  value  may  be  determined  by  ascertaining  the 
cost  of  manufacturing  the  goods,  if  that  is  the  natural  and  reasona- 
ble way  to  procure  them;^^  or,  if  the  exact  descri])tion  of  goods 

19  Valpy  v.  Oakeley,  16  Q.  B.  941;  Moses  v.  Rasin,  14  Fed.  772;  Fessler 
V.  Love,  48  Pa.  St.  407;  Wire  v.  Foster,  62  Iowa,  114,  17  N.  W.  174.  Nominal 
damages  only  will  be  awarded  for  failure  to  deliver  certain  paid-up  stock, 
which  has  not  been  issued,  and  which  has  no  market  or  actual  value, 
though  it  would  have  cost  its  par  value  to  procure  it,  since  the  measure  of 
damages  is  not  the  cost  of  procuring  it,  but  the  loss  sustained  by  failure  to 
receive  it.     Barnes  v.  Brown,  130  N.  Y.  372,  29  N.  E.  760. 

2  0  Roper  V.  Johnson,  L.  R.  8  C.  P.  167;  Austrian  &  Co.  v.  Springer,  94  Mich. 
343,  54  N.  W.  50.  Duty  of  vendee  to  supply  himself  elsewhere.  Miller  v. 
Trustees,  7  Greenl.  51.  Cf.  Brown  v.  Muller,  L.  R.  7  Exch.  319.  Several  de- 
liveries. Merrimack  Manuf'g  Co.  v.  Quiutard,  107  Mass.  12? :  Booth  v.  Roll- 
ing Mill  Co.,  60  N.  Y.  487;   McHose  v.  Fulmer,  73  Pa.  St.  365. 

21  Ogle  V.  Earl  Vane,  L.  R.  3  Q.  B.  272;  Hickman  v.  Haynes,  L.  R.  10  C. 
P.  598;  Roberts  v.  Benjamin,  124  U.  S.  64,  8  Sup  Ot.  393;  Hill  v.  Smith. 
34  Vt.  535;  McDermid  v.  Redpath.  39  Mich.  372;  Browi  v.  Sharkey  (Iowa) 
CI  N.  W.  364. 

2  2  Grand  Tower  Co.  v.  Phillips,  L'3  Wall.  471;  Furlong  v.  Polleys,  30  Me. 
491;    Cahen  v.  Piatt,  69  N.  Y.  348;    Johnson  v.  Alien.  78  Ala.  387. 

*»  Paine  v.  Sherwood,  21  Minn.  225.  Where  there  11,  no  market  price,  but 
the  goods  have  been  resold,  the  price  paid  plus  the  proflts  on  tho  resale  may 
be  recovered.     Trigg  v.  Clay,  88  Va.  330,  13  S.  E   434. 


244  BREACH  OF  CONTRACTS  FOR  SALK  OF  GOODS.        (Ch.  9 

cannot  be  obtained,  the  damages  may  be  fixed  by  the  price  of  the 
best  substitute  obtainable,  if  it  is  reasonable  for  the  buyer  to  take 
that  course."*  If  no  substitute  is  obtainable,  the  buyer  may  be  en- 
titled to  special  damages."" 

Special  Damages. 

As  in  other  classes  of  contracts,  the  damages  may  be  special  as 
Avell  as  general.  The  measure  of  general  damages  is  the  loss  di- 
rectly and  naturally  resulting  from  the  breach  of  the  contract,  under 
ordinary  circumstances.  The  rule  as  to  market  price  flows  natu- 
rally from  this  general  principle.  The  measure  of  special  damages 
is  the  loss  directly  and  naturally  resulting  from  the  breach  of  con- 
tract under  the  special  circumstances  of  the  case  as  contemplated 
by  the  parties."®  Each  case  involving  special  damages  must  be  de- 
termined by  its  own  merits.  Special  damages  are  not  recoverable^ 
unless  alleged  with  sufficient  particularity  to  enable  the  defendant 
to  meet  the  demand."^ 

Communication  of  Special  Circumstances. 

The  seller  cannot  be  charged  with  special  damages,  unless  he  had 
knowledge  of  the  special  circumstances  from  which  the  special  loss 

24  Hinde  v.  Liddell,  L.  R.  10  Q.  B.  265.  The  buyer  must  always  make  rea- 
sonable exertions  to  mitigate  bis  damages.  Hammer  v.  Scboenfelder,  47  Wis. 
455,  2  N.  W.  1129.  Tbe  measure  of  damages  for  breach  of  contract  to  fur- 
nish certain  kinds  of  coal  for  a  particular  purpose  is,  in  case  the  buyer  is 
forced  to  purchase  a  more  expensive  grade,  the  difference  in  price,  when  the 
cheaper  gi'ade  would  have  answered  exactly  the  same  purpose.  Consolidated 
Coal  Co.  of  St.  Louis  v.  Block  &  Hartman  Smelting  Co.,  53  111.  App.  565. 

2  0  Parsons  v.  Sutton,  66  N.  Y.  92;  Richardson  v.  Chynoweth,  26  Wis.  656. 
Some  courts,  however,  permit  the  buyer  to  recover  his  actual  loss  by  way 
of  general  damages,  on  the  ground  that,  where  an  article  of  similar  quality 
cannot  be  procured,  this  is  a  contingency  which  must  be  considered  to  have 
been  within  the  contemplation  of  the  parties,  who  are  presumed  to  know 
whether  the  article  is  of  limited  production  or  not.  McHose  v.  Fulmer,  73 
Pa.  St.  365;  Culin  v.  Woodbury  Glass  Works,  108  Pa.  St.  220;  Bell  v.  Rey- 
nolds, 78  Ala.  511.  See,  also,  Carroll  Porter  Boiler  &  Tank  Co.  v.  Columbus 
Mach.  Co.,  5  C.  C.  A.  190,  55  Fed.  451. 

26  Hadley  v.  Baxendale,  9  Exch.  341.  354,  23  Law  J.  Exch.  179;  Griffin  v. 
Colver,  16  N.  Y.  489.     See,  also,  Cassidy  v.  Le  Fevre.  45  N.  Y.  562. 

2  7  Smith  V.  Thomas,  2  Bing.  N.  C.  372;  Parsons  v.  Suiton,  66  N.  Y.  92;. 
Furlong  v.  Polleys,  30  Me.  491.    See  ante,  p.  223. 


§§    98-99)       ACTIO.N    BY    BUYER DAMAGES    FOB    NONDELIVERY.  245 

would  be  likely  to  result;  ^^  and  while,  if  he  had  such  knowledge, 
he  will  generally  be  charged,-^  it  is  important  to  bear  in  mind  that 
mere  communication  of  the  special  circumstances  is  not  enough 
unless  it  be  given  under  such  circumstances  as  reasonably  to  imply 
that  it  formed  the  basis  of  the  agreement, — that  is,  unless  the  cir- 
cumstances are  such  that  it  must  be  supposed  that  a  reasonable 
man  would  have  had  them  in  contemplation  as  a  probable  result  of 
the  breach  of  the  contract.^" 

A  seller  is  usually  bound  for  such  damages  as  result  to  the  buyer 
from  being  deprived  of  the  ordinary  use  of  a  chattel,  but  not  for 
such  damages  as  result  to  him  from  being  deprived  of  its  use  for 
a  special  or  extraordinary  purpose,  which  was  not  communicated.^^ 
So  the  buyer  is  not  usually  entitled  to  damages  arising  from  loss  of 
profits  on  a  subsale,  or  from  penalties  or  expenses  incurred  by  him 
from  inability  to  execute  such  subsale;  ^^  but  he  may  recover  such 

2  8  Cory  V.  Thames  Iron  Works  &  Ship  Bids.  Co..  L.  K.  3  Q.  B.  181.  37 
Law  J.  Q.  B.  68;  British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co. 
V.  Nettleship,  L.  R.  3  C.  P.  499,  37  Law  J.  C.  P.  235;  Bartlett  v.  Blanchard, 
13  Gray,  429;  Fessler  v.  Love,  48  Pa.  St.  407;  Billmeyer  v.  Wagner,  91  Pa. 
St.  92;  Paine  v.  Sherwood,  10  Minn.  315  (Gil.  270);  Mihills  Manuf'g  Co.  v. 
Day,  50  Iowa,  2.j0;  Peace  River  Phosphate  Co.  v.  Grafflin,  58  Fed.  550;  Mas- 
terton  v.  Mayor,  etc.,  7  Hill,  61. 

2  9  Smeed  v.  Foord.  1  El.  &  El.  002,  28  Law  J.  Q.  B.  178  (loss  of  crop  from 
delay  in  furnishing  threshing  machine).  A  seller  who  contracts  to  supply  a 
butcher  with  ice,  knowing  it  is  required  to  preserve  meat,  is  liable  if  the 
meat  spoils  in  consequence  of  his  failure  to  supply,  and  the  buyer  is  unable 
to  supply  himself  elsewhere.  Hammer  v.  Schoenfelder,  47  Wis.  455,  2  N. 
W.  1129.  The  full  amount  of  damage  to  lettuce  growing  in  a  greenhouse, 
and  frozen  by  reason  of  failure  to  supply  water  for  steam  heating,  is  the 
measure  of  damages  for  such  failure.  Watson  v.  Inhabitants  of  Needhani. 
161  Mass.  404,  37  N.  E.  204. 

30  British  Columbia  &  V.  I.  Spar,  Lumber  &  Sawmill  Co.  v.  Nettleship, 
cited  in  note  28;  Home  v.  Midland  Ry.  Co.,  L,  R.  7  C.  P.  583,  591,  L.  R. 
8  C.  P.  1.31,  per  Willes,  .1.;  Booth  v.  Spuyten  Duyvill  Rolling  Mill  Co.,  m  X. 
y.  487,  496. 

31  Cory  v.  Thames  Iron  Works  &  Ship  Bldg.  Co..  L.  R  3  Q.  B.  181,  37  Law 
J.  Q.  B.  68.  On  a  contract  to  deliver  furniture  for  an  hotel,  set  up  in  the 
rooms  and  ready  for  use  on  a  certain  date,  damages  for  delay  in  performance 
Is  measured  by  the  rental  value  of  the  rooms  when  furnished,  during  the  de- 
lay,     r.crkr-y  it  (jay  Furniture  Co.  v.  Ilascall.  V2:',  Ind   r)02,  24  N.  E.  3.36. 

32  Williams  v.  Reynolds,  6  Best  &  S.  49.j,  34  Law  .7.  (}.  B.  221;    Devlin  v. 


246  BREACH  OF  CONTRACTS  FOR  SALE  OF  GOODS.        (Cll.  0 

damages  if  the  subsale  and  the  other  special  circumstances  neces- 
sary to  advise  him  of  the  probable  consequences  of  a  breach  were 
communicated  to  the  seller.*' 


SAME— DAMAGES  AS  FOR  CONVERSION. 

100.  Where  under  a  contract  of  sale  the  property  in  the 
goods  has  passed  to  the  buyer,  and  the  seller 
■wrongfully  neglects  or  refuses  to  deliver  the  goods, 
the  buyer  may  maintain  an  action  for  conversion 
of  the  goods  against  the  seller  and  recover  their 
value.^ 

\Mien  the  property  has  passed,  if  the  seller  refuses  to  deliver, 
the  buyer  has  the  same  right  of  action  for  nondelivery  as  if  the 
property  had  not  passed;  but  he  has,  in  addition  to  his  right  of 
action  on  the  contract,  the  rights  of  an  owner.  He  has  not  only 
the  property  in  the  goods,  but  the  right  of  possession,  defeasible  in 
the  case  of  his  failure  to  pay  for  the  goods.^^  If  he  is  not  in  default, 
therefore,  he  may,  on  the  refusal  of  the  seller  to  deliver,  maintain 
an  action  for  conversion.  As  a  rule,  the  measure  of  the  buyer's 
damages  in  such  an  action,  either  against  the  seller  *^  or  a  third 
person,  who  has  dealt  with  the  goods  under  such  circumstances  as 
to  amount  to  a  conversion,^  ^  is  the  value  of  the  goods  at  the  time 
of  the  conversion.  But  he  cannot  recover  greater  damages  against 
the  seller  by  suing  in  tort  than  by  suing  on  the  contract;  and,  if  he 

Mayor,  etc.,  63  N.  Y.  8;  Cockburn  v.  Ashland  Lumber  Co.,  54  Wis.  619,  627, 
12  N.  W.  49.  See,  also,  Fox  v.  Harding,  7  Cush.  516;  Borries  v.  Hutchinson, 
18  C.  B.  (N.  S.)  445. 

38  Elbinger  Actien-Gesellschafft  fur  Fabrication  von  Eisenbahn  Materiel 
V.  Armstrong,  L.  R.  9  Q.  B.  473;  Hydraulic  Engineering  Co.  v.  McHaffie, 
4  Q.  B.  Div.  670;  Grebert-Borgnis  v.  Nugent,  15  Q.  B.  Div.  85;  Messmore 
V.  New  York  Shot  &  Lead  Co.,  40  N.  Y.  422;  Booth  v.  Spuyten  Duyvill  Roll- 
ing Mill  Co.,  60  N.  Y.  487. 

3*  See  Chalm.  Sale,  §  54. 

3  5  Benj.  Sales,  §§  883,  886. 

36  Kennedy  v.  Whitwell,  4  Pick.  466;    Philbrook  v.  Eaton,  134  Mass.  398. 

3  7  Chinery  v.  Viall,  5  Hurl.  &  N.  2SS,  29  Law  J.  Exch.  180;  France  v.  Gau- 
det,  L.  R.  6  Q.  B.  199. 


§    101)  DAMAGES    FOR    BREACH    OF    WARRANTY.  247 

has  not  paid  for  the  goods,  the  measure  of  his  damages  will  be  the 
difference  between  the  contract  price  and  the  market  value.'* 


SAME— DAMAGES  FOR  BREACH  OP  WARRANTY. 

101.  The  measure  of  damages  for  breach  of  warranty  of 
fitness,  quality,  or  condition  is  the  estimated  loss, 
directly  resulting  from  the  breach  of  -warranty. 
Such  loss  is  prima  facie  the  difference  betw^een  the 
value  of  the  goods  at  the  time  of  delivery  to  the 
buyer  and  the  value  they  would  have  had  if  they 
had  answered  the  w^arranty. 

That  the  buyer  may  bring  an  action  for  damages  in  case  the  goods 
are  inferior  in  quality  to  that  warranted,  follows  from  the  general 
rule  that  an  action  for  damages  lies  in  every  case  of  a  breach  of  con- 
tract.»' 

Diminution  of  Damages — Recoupment. 

Instead  of  bringing  an  action  for  damages,  the  buyer  may  wait 
till  he  is  sued  for  the  price,  and  then  set  up  the  breach  of  warranty 
in  diminution  pro  tanto  of  the  damages.*"  And  at  common  law  this 
was  his  only  way  of  availing  himself  of  a  breach  of  warranty  as  a 
defense.  The  rule  was  stated  by  Parke,  B.,  in  the  leading  case  oi 
Mondel  t.  Steel,*^  as  follows:  "Formerly  it  was  the  practice  when 
an  action  was  brought  for  an  agreed  price  of  a  specific  chattel  sold 
with  a  warranty,  to  allow  the  plaintiff  to  recover  the  stipulated  sum, 

3  8  Chinery  v.  Viall,  5  Hurl.  &  N.  288.  29  Law  J.  Exch.  180. 
89  Poulton  V.  Lattimore,  9  Barn.  &  C.  259;   Day  v.  Pool,  52  N.  Y.  41G;    Scott 
V.  Raymond,  31  Minn.  437,  IS  N.  W.  274;    Cox  v.  Long,  G9  N.  C.  7;    Polhemus 
V.  Heiman,  45  Cal.  573. 

4"  Street  v.  Blay,  2  Barn.  &  Add.  456;  Parson  v.  Sexton,  4  C.  B.  899; 
Poulton  V.  Lattimore,  9  Barn.  &  C.  259;  Withers  v.  Green,  9  How.  213; 
Lyon  V.  Bertram,  20  How.  149,  154;  Bradley  v.  Rea,  14  Allen,  20;  Dailey 
V.  Green,  15  Pa.  St.  118,  12G;  Dayton  v.  Hooglund,  39  Ohio  St.  G71;  Doane 
V.  Dunham,  65  111.  51^,  79  111.  131;  Underwood  v.  Wolf,  131  111.  425,  23  N. 
E.  598;  Morehouse  v.  Comstock,  42  Wis.  626;  Polhemus  v.  Heiman,  45  Cal. 
573;  Breen  v.  Moran,  51  Minn.  525,  53  N.  W.  755;  Central  Trust  Co.  v. 
Arctic  Ice  Mach.  Manuf'ij  Co.,  77  Md.  202,  26  Atl.  493. 
♦  1  8  Mees.  &i   \V.  858. 


248  BREACH  ov  contracts  kor  sale  of  goods.  (Ch.  0 

leaving  the  defendant  to  a  cross  action  for  breach  of  the  warranty; 
in  which  action  as  well  the  difference  between  the  price  contracted 
for  and  the  real  value  of  the  articles  as  any  consequential  damage 
might  have  been  recovered.  *  *  *  The  performance  of  the  war- 
ranty not  being  a  condition  precedent  to  the  payment  of  the  price, 
the  defendant  who  received  the  chattel  warranted  has  thereby  the 
property  vested  in  him  indefeasibly,  and  is  incapable  of  returning  it 
back.  He  has  all  that  he  stipulated  for  as  the.  condition  of  paying 
the  price,  and  therefore  it  was  held  that  he  ought  to  pay  it,  and 
seek  his  remedy  on  the  plaintiff's  contract  of  warranty.  ♦  *  • 
But,  after  the  case  of  Basten  v.  Butter,''-  a  different  practice  began 
to  prevail,  and,  being  attended  with  much  practical  convenience, 
has  since  been  generally  followed;  and  the  defendant  is  now  per- 
mitted to  show  that  the  chattels,  by  reason  of  the  noncompliance 
with  the  warranty,  were  diminished  in  value.  *  *  *  The  rule 
is  that  it  is  competent  for  the  defendant,  not  to  set  off  by  a  proce- 
dure in  the  nature  of  a  cross  action  the  amount  of  damages  which 
he  has  sustained  by  breach  of  the  contract,  but  simply  to  defend 
himself  by  showing  how  much  less  the  subject-matter  of  the  actioiv 
was  worth,  by  reason  of  the  breach  of  contract;  and  to  the  extent 
that  he  obtains,  or  is  capable  of  obtaining,  an  abatement  of  price 
on  that  account,  he  must  be  considered  as  having  received  satisfac- 
tion for  the  breach  of  contract,  and  is  precluded  from  recovering 
in  an  other  action  to  that  extent,  but  no  more."' 

This  case  also  determined  that  the  buyer  must  bring  a  cross  action 
if  he  desired  to  claim  consequential  or  special  damages;  but,  under 
the  changed  procedure  now  generally  prevailing,  the  buyer  may  re- 
cover such  damages  by  way  of  counterclaim.*^  And  to-day  in  most 
states  such  damages  may  be  set  up  by  way  of  defense  or  counter- 
claim in  an  action  on  a  note  given  for  the  price.** 

Measure  of  Damages. 

Prima  facie  the  measure  of  damages,  in  case  of  a  breach  of  war- 
ranty, is  the  difference  between  the  value  of  the  goods  as  they  in 

<2  7  East,  479. 

*3  See  Zabriskie  v.  Central  Vt.  R.  Co.,  131  N.  Y.  72,  29  N.  E.  1006. 
<4  Withers  v.  Greene,  9  How.  213;    Ruff  v.  .Tarrett.  94  111.  475;    Wentworth 
V.  Dows,  117  Mass.  14,  per  Colt,  J.;    Wright  v   Davtuport.  44  Tex.  104. 


§    10    )  DAMAGES    FOR    BREACH    OF    WARRANTY.  249 

fact  were  and  the  value  of  the  goods  as  it  would  have  been  if  they 
had  been  as  warranted.*"*  This  is  because,  in  ordinary  cases,  the 
difference  is  the  loss  which  results  directly  from  the  breach  of  war- 
ranty. But  the  buyer  may  recover  whatever  other  losses  directly 
result  from  the  breach.*®  Thus  where  the  seller  warranted  seed  as 
of  a  particular  description,  and  delivered  inferior  seed,  he  was  held 
liable  for  the  loss  of  crop  which  thereby  resulted  to  the  buyer;  *' 
iind,  where  the  buyer  resold,  the  seller  was  held  liable  for  the  loss 
of  crop  which  resulted  to  the  subpurchaser,  and  for  which  the  buyer, 
having  resold  with  a  warranty,  was  liable  to  the  subpurchaser.*' 

<B  Jones  V.  Just,  L.  R.  3  Q.  B.  197;  Dingle  v.  Hare,  7  C.  B.  (N.  S.)  145, 
29  Law  J.  C.  P.  144;  Reggio  v.  Braggiotti,  7  Cush.  1G6;  Case  v.  Stevens, 
137  Mass.  551;  Thorns  v.  Dingley,  70  Me.  100;  Rutan  v.  Ludlam,  29  N.  J. 
Law,  398;  Freyman  v.  Knecbt,  78  Pa.  St.  141;  Porter  v.  Pool,  62  Ga.  238; 
Herring  v.  Skasj-'s.  62  Ala.  180;  Ferguson  v.  Hosier,  .^)S  Ind.  4.3S;  Case 
Threshing  Mach.  Co.  v.  Haven,  65  Iowa,  350,  21  N.  W.  677;  Aultman  & 
Taylor  Co.  v-  Hetherington,  42  Wis.  622;  Frohreich  v.  Gammon,  28  Minn. 
476,  11  N.  W.  88;  Merrick  v.  Wiltse,  37  Minn.  41,  33  N.  W.  3;  Wheeler  & 
W.  Manuf'g  Co.  v.  Thompson,  33  Kan.  491,  6  Pae.  902.  Under  Civ.  Code  Cal. 
I  3313,  the  damages  for  breach  of  Avarrauty  of  tht,  quality  of  fruit  trees  is 
the  difference  in  the  value  between  the  kind  of  trees  warranted  and  the  trees 
actually  delivered,  at  the  time  those  delivered  first  bore  fruit.  This  value 
may  be  shown  by  the  difference  between  the  value  of  the  land  occupied  by 
the  trees  at  the  time  the  breach  is  discovered,  and  the  value  such  land  would 
have  had  if  the  trees  had  been  of  the  kind  warranted.  Shearer  v.  Park  Nurs- 
■ery  Co.,  103  Cal.  415,  37  Pae.  412. 

46  Measure  of  damages  for  breach  of  warranty  is  the  difference  between 
the  actual  value  of  the  defective  articles  and  their  value  had  they  been  in  ac- 
cordance with  the  warranties,  to  which  may  be  added  compensation  for  the 
trouble  and  expense  incurred,  and  any  other  special  damages.  J.  L  Case 
Plow  Works  V.  Niles  &  Scott  Co.  aVis.)  63  N.  W.  1013.  See,  also,  Suttle  v. 
Hutchinson  (Tex.  Civ.  App.)  31  S.  W.  211;    Glidden  v.  Pooler,  50  111.  App.  36. 

<7  Wolcott  V.  Mount.  38  N.  J.  Law.  496,  affirming  36  N.  J.  Law,  262; 
White  V.  Miller,  71  N.  Y,  118,  78  N.  Y.  393.  See,  also.  Passenger  v.  Thor- 
bura,  34  N.  Y.  634;  Van  Wyck  v.  Allen.  69  N.  Y.  61.  Contra,  Butler  v. 
Moore,  68  Ga.  780.  Where  a  druggist  sold  Paris  groen  to  a  planter  for 
the  known  purpose  of  killing  cotton  worms,  but  the  article  was  not  Paris 
green,  and  failed  to  kill  the  worms  on  being  applie<l  to  the  buyer's  crop, 
the  measure  of  da  usages  for  the  broacli  of  the  contract,  if  it  resulted  in 
the  loss  of  the  crop,  was  the  value  of  the  crop  as  it  stood,  with  the  cost 
of  the  article,  the  expense  of  applying  it,  and  Interest.  Jones  v.  George, 
ne  Tex.  149,  61  Tex.  345.     See,  also,  Shaw  v.  Smith,  45  Kan.  334,  25  P.ic  S8(;. 

18  Randall  v.  Raper,  El.,  Bl.  &  KI.  S4.  27  Law  J.  Q.  B.  266. 


250  BREACH  OF  CONTUACTS  FOR  SALE  OF  GOODS.         (Cll.  9' 

The  rules  in  respect  to  special  damages  which  have  already  been 
stated  are  applicable.***  The  question  is  what  a  reasonable  man, 
witli  the  knowledge  of  the  parties,  would  have  contemplated  as  the 
probable  result  of  a  breach  of  the  warranty  had  he  applied  his 
mind  to  it.  "When  one  sells  and  warrants  a  thing  for  a  particular 
use,  upon  reasonable  ground  for  believing  that,  if  put  to  such  use, 
a  certain  loss  to  the  buyer  will  be  the  probable  result  if  the  war- 
ranty is  untrue,  ♦  ♦  *  the  seller  is,  under  the  warranty,  charge- 
able with  the  loss,  as  one  which  may  reasonably  be  supposed  to 
have  been  in  the  contemplation  of  the  parties  when  making  the 
contract."  °° 

* 9  Thorns  V.  Dingley,  70  Me.  100;  Parks  v.  Morris  Axe  &  Tool  Co.,  54  N. 
Y.  568;  Thorne  v.  McVeagh,  75  111.  81;  Herring  v.  Skaggs,  62  Ala.  ISO 
(seller  not  liable  for  valuables  stolen  from  safe  warranted  burglar  proof); 
McCormick  v.  Vanatta,  43  Iowa,  389;  Aultman  v.  Stout,  15  Neb.  350,  19' 
N.  W.  464;  English  v.  Spokane  Commission  Co.,  6  C.  C.  A.  416,  57  Fed. 
451.  Buyer  reselling  with  warranty  may  recover  costs  of  defense  against 
subpurchaser,  where  seller  declines  to  defend.  Lewis  v.  Peake,  7  Taunt. 
153;  Hammond  v.  Bussey.  20  Q.  B.  Div.  79.  Where  the  seller  sold  a  re- 
frigerator to  a  poultry  dealer  with  kno'^.iedge  that  he  intended  to  use  it 
to  preserve  chickens  for  the  May  market,  and  warranted  that  it  would 
keep  them  in  perfect  condition,  which  it  failed  to  do,  and  many  chickens 
were  lost,  the  buyer  was  entitled  to  recover,  in  addition  to  the  difference 
between  the  value  of  the  refrigerator  as  constructed  and  as  warranted,  the 
market  value  of  the  chickens  lost,  less  expenses  of  sale.  Beeman  v.  Banta, 
118  N.  Y.  538,  23  N.  E.  887.  Where  a  manufacturer  of  ice  cream  bought 
coloring  matter,  which  the  seller,  knowing  its  purpose,  represented  to  be 
pure  and  harmless,  but  which  in  fact  was  poisonous,  and  the  buyer's  cus- 
tomers who  ate  ice  cream  containing  the  matter  were  made  sick,  and  the 
buyer  destroyed  the  ice  cream,  held,  that  the  buyer  could  recover  the  value 
of  the  goods  so  destroyed,  and  the  damage  caused  by  the  resulting  loss 
of  customers.  Swain  v.  Schieffelin,  134  N.  Y.  471,  31  N.  E.  1025.  The  buyer, 
suing  for  breach  of  warranty  of  a  tackle  block,  cannot  recover  a  sum  paid 
by  him  without  suit,  and  without  communication  with  the  defendant,  to- 
a  sei-vant  for  personal  Injuries  caused  by  the  breaking  of  the  block,  unless 
the  servant  might  have  recovered  from  the  plaintiff,  Roughan  v.  Boston  & 
L.  Block  Co.,  161  Mass.  24,  36  N.  E.  461. 

50  Frohreich  v.  Gammon,  28  Minn.  476,  11  N.  W.  88,  per  Berry,  .1.  See. 
also,  Wilson  v.  Reedy,  32  Minn.  2.56,  20  N.  W.  153.  Where  the  vendee  uses 
the  article,  and  thereby  suffers  loss,  the  measure  of  damages  recoverable  for 
breach  of  warranty  of  quality  is  not  the  cost  of  changing  it  and  making  it 
conform  to  the  warranty,  but  the  losses  sustained  by  him,  including  profits 
he  would  have  made.     Beeman  v.  Banta,  118  X.  Y.  538.  23  N.  E.  887. 


§§   102-103)        DAMAGES   IN    ACTIONS    AGAINST   CARRIERS.  251 

CHAPTER  X. 

DAMAGES  IN  ACTIONS  AGAINST  CARRIERS. 

102-103.  Carriers  of  Goods— Damages  for  Refusal  to  Transport 

104.  Damages  for  Loss  or  Nondelivery. 

105.  Damages  for  Injury  in  Transit. 
106-107.  Damages  for  Delay. 

lOS.  Consequential  Damages. 

109.  Carriers  of  Passengers— Damages  for  Injuries  to  Passenger. 

110.  Exemplary  Damages  and  Mental  Suffering. 

111.  Personal  Injury. 

112.  Failure  to  Carry  Passenger— Delay. 

113.  Failure  to  Carry  to  Destination— Wrongful  Ejection. 

CARRIERS  OF  GOODS— DAMAGES  FOR  REFUSAL  TO 
TRANSPORT. 

102.  The  measure  of  damages  for  refusal  to   receive  and 

transport  goods  is  the  difference  betw^een  the  value 
of  the  goods  at  the  time  and  place  of  refusal  and 
"what  vsrould  have  been  their  value  at  the  time  and 
place  -where  they  should  have  been  delivered. 

103.  If  other  reasonable  mode  of  conveyance  can  be   pro- 

cured the  measure  of  damages  is  the  increased  cost 
of  transportation. 

The  object  of  all  transportation  is  to  have  the  use  of  or  an  oppor- 
tunity to  sell  the  goods  at  the  place  of  destination.  The  damages  for 
a  wrongful  refusal  to  transport  goods  is,  therefore,  the  value  to  the 
shipper  of  having  them  at  the  point  of  destination.  This  will  or- 
dinarily be  the  difference  between  the  value  of  the  goods  at  the  time 
and  place  of  refusal  and  their  value  at  the  place  of  destination  at  the 
time  they  should  have  been  delivered  there.^     Thus,  where  a  carrier 

1  Pennsylvania  R.  Co.  v.  Titusvillu  &  P.  P.  R.  Co.,  71  Pa.  St.  330;  Galena  & 
C.  U.  R.  Co.  V.  Rae,  18  III.  488;  Harvey  v.  Railroad  Co.,  124  Mass.  4-Jl; 
Bridgman  v.  The  Emily,  18  Iowa,  509;  Ward's  C.  &  P.  L.  Co.  v.  Elklns,  34 
Mich.  439;  O'Couuer  v.  Forster,  10  Watts,  418;  Bracket  v.  McNair.  14  Johns. 
170. 


2-32  DAMAGES    I.V    ACTIONS    AGAINST    CARRIERS.  (Cll.    10 

agreed  to  transport  lumber,  railroad  ties,  etc.,  from  Canada  to  Bos- 
ton, and  failed  to  do  so,  the  measure  of  damages  was  held  to  be  the 
difference  between  the  market  price  in  Boston  and  Canada  at  the 
time  when  the  defendant  should  have  performed,  less  the  cost  of 
transportation.-  But  damages  cannot  be  recovered  for  consequen- 
ces that  might  have  been  avoided  by  the  exercise  of  reasonable  dili- 
gence on  the  part  of  the  plaintiff.  Therefore,  if  other  means  of 
transportation  may  be  had,  and  the  circumstances  are  such  that  a 
reasonably  prudent  man  would  forward  the  goods  by  those  means, 
the  measure  of  damages  is  the  increased  expense. of  transportation 
by  such  means;'  and,  if  such  means  is  no  more  expensive,  and  is 
equally  convenient,  only  nominal  damages  can  be  recovered.* 

SAME— DAMAGES  FOR  LOSS  OR  NONDELIVERY. 

104.  The  measure  of  damages  for  total  loss  or  nondelivery 
is  the  value  of  the  goods  at  the  time  and  place  they 
should  have  been  delivered. 

Obviously,  the  natural  and  probable  consequences  of  a  failure  to 
deliver  the  goods  at  their  destination  is  a  loss  to  the  owner,  amount- 
ing to  the  value  of  the  goods  at  that  point,  and  such  value  is  there- 
fore the  measure  of  damages.^     Ordinarily,  value  means  market 

2  Harvey  v.  Railroad  Co.,  124  Mass.  421. 

3  O'Conner  v.  Forster.  10  Watts,  418;  Ogden  v.  :Marshall,  8  N.  Y.  340; 
Grund  v.  Pendergast,  58  Barb.  21G;  Higginson  v.  Weld,  14  Gray,  1G5;  Crouch 
V.  Kaihvay  Co.,  11  Excb.  742.  When  a  refusal  to  perform  is  shown  on  tlie 
part  of  the  carrier,  and  it  is  proven  that  the  price  of  transportation  had  risen 
before  the  time  the  ship  sailed,  the  plaintiff,  is  entitled  to  his  damages,  meas- 
ured by  the  rise  in  the  price,  without  proving  that  he  had  the  freight  ready 
to  ship.  Ogden  v.  Marshall,  8  N.  Y.  .340.  See,  also.  Nelson  v.  Elevating  Co.. 
55  N.  Y.  480.  Cf.  Bohn  v.  Cleaver,  25  La.  Ann.  419.  Plaintiff  cannot  recover 
for  damages  caused  by  his  failure  to  properly  care  for  the  goods  while  they 
were  in  store  awaiting  transportation,  and  before  they  had  been  accepted  by 
the  carrier.    Hamilton  v.  McPherson,  28  N.  Y.  72. 

*  3  Suth.  Dam.  §  899. 

5  Rodocanachi  v.  Milburu,  IS  Q.  B.  Div.  67.  Cf.  Magnin  v.  Dinsmore,  56  N. 
Y.  168,  62  N.  Y.  35,  and  70  N.  Y.  410.  See,  also,  Faulkner  v.  Hart,  82  N.  Y. 
413;  Spring  v.  Haskell,  4  Allen,  112;  Sangamon  &  M.  R.  Co.  v.  Henry,  14  111. 
156;  Chicago  &  N.  W.  Ry.  Co.  v.  Dickinson,  74  111.  249;   Arthur  v.  The  Cassius, 


§    lOi)  DAMAGES    FOR    LOSS    OR    NONDELIVERY.  253 

value,  but  where  goods  have  no  market  value  their  value  to  the 
owner  may  be  recovered.^ 

Though  the  general  rule  undoubtedly  is  that  the  value  at  the 
point  of  destination  furnishes  the  measure  of  damages,  a  distinction 
is  made  in  some  jurisdictions  in  the  case  of  sea  voyages.  Thus  it 
has  been  held,  in  New  York,  that  when  a  loss  to  cargo,  from  leak- 
age or  otherwise,  occurs  in  the  port  where  it  is  laden,  and  before  the 
voyage  begins,  the  carrier  is  liable  for  its  value  at  such  port.  But 
when  the  loss  happens  after  the  vessel  has  left  the  port  of  shipment, 
then  the  value  of  the  goods  at  the  place  of  destination,  deducting 
the  charges,  furnishes  the  true  rule  of  damages."^ 

In  the  case  of  connecting  carriers,  each  carrier  is  liable  only  for 
the  value  at  the  terminus  of  its  own  route,^  unless  it  has  expressly 
or  impliedly  contracted  to  carry  the  goods  to  their  ultimate  destina- 
tion, in  which  case  the  value  at  the  latter  point  furnishes  the  meas- 
ure of  damages.' 

The  value  should  be  estimated  as  of  the  time  when  the  goods 
should  have  been  delivered.^" 

2  story,  SI,  Fed.  Cas.  No.  564;  The  Nitn,  3G  Fed.  86;  South  &  North  Alabama 
R.  Co.  V.  Wood,  72  Ala.  451;  Marquette,  H.  &  O.  R.  Co.  v.  Langtou,  32  Mich. 
251;  Dunn  v.  Railroad  Co.,  68  Mo.  268;  Gray  v.  Packet  Co.,  64  Mo.  47;  At- 
kisson  V.  The  Castle  Garden,  28  Mo.  124,  Sturgess  v.  Bissell,  46  N.  Y.  462; 
Shaw  V.  Railroad  Co.,  5  Rich.  Law,  462;  Chapman  v.  Railroad  Co.,  26  Wis.  295; 
Whitney  v.  Railroad  Co.,  27  Wis.  327;  The  Joshua  Barker,  1  Abb.  Adm.  215, 
Fed.  Cas.  No.  7,547.  But  see  The  Telegraph,  14  Wall.  258;  Wheelwright  v. 
Beers,  2  Hall,  391;  Jackson  v.  The  Julia  Smith,  Newb.  Adm.  61,  Fed.  Cas. 
No.  7,136  (where  the  invoice  price  with  interest  was  held  to  be  the  measure 
of  damages).  For  failure  to  deliver  machinery  shipped  from  England  to  Van- 
couver's Island,  the  damages  were  held  to  be  the  cost  of  replacing  the  lost 
machinery  in  Vancouver's  Island,  with  interest  upon  the  amount  until  judg- 
ment by  way  of  compensation  for  delay.  British  Columbia  &  V.  I.  Spar,  Lum- 
ber   &  Saw-Mill  Co.  V.  Nettleship,  L.  R.  3  C.  R.  499. 

6  Cf.  Rodocanachi  v.  Milburn,  18  Q.  B.  Div.  67. 

7  Krohn  v.  Oeehs,  48  Barb.  127.     See,  also,  Lakeman  v.  Grinnell,  5  Bosw. 
C2f5;    King  v.  Shepherd,  3  Story,  349,  Fed.  Cas.  No.  7,804. 

8  Louis  V.  The  Buckeye,  1  Handy  (Ohio)  150.    And  see  Marshall  v.  Railroad 
Co.,  45  Barb.  502. 

9  Perkins  v.  Railroad  Co.,  47  Me.  573;    Erie  Ry.  Co.  v.  Lockwood.  28  Ohio- 
St.  358.    And  see  Michigan  S.  &  N.  L  R.  Co.  v.  Caster,  13  Ind.  164. 

10  Smith  V.  Griffith,  3  Hill,  333;    Kent  v.  Railroad  Co.,  22  Barb.  278. 


254  DAMAGES    IN    ACTIONS    AGAINST    CARRIERS.  (Ch.    10 

A  misdelivery  is  equivalent  to  a  nondelivery,  and  the  measure  of 
damages  is  the  same.^^  If  the  goods  are  ultimately  received  by  the 
owner,  the  damages  will  be  reduced  by  the  value  of  the  goods  re- 
ceived, less  the  expense  of  recovering  them,  or  the  damages  caused 
by  the  delay." 

SAME— DAMAGES  FOR  INJURY  IN  TRANSIT. 

105.  The  measure  of  damages  for  injury  to  goods  in  trans- 
it is  the  difference  bet-ween  the  value  of  the  goods 
at  the  time  and  place  of  delivery  in  their  damaged 
condition  and  what  their  value  -would  have  been 
had  they  been  delivered  in  good  order. 

Where  there  is  a  total  failure  to  deliver  the  goods,  the  owner's  loss 
is  their  real  value.  It  is  obvious  that  if  the  goods  are  delivered  to 
the  consignee,  but  in  a  damaged  condition,  the  actual  loss  is  di- 
minished by  an  amount  equal  to  the  value  of  the  damaged  goods 
received,  and  the  difference  between  this  value  and  what  the  valut 
would  have  been  had  the  goods  been  delivered  uninjured  is  the 
measure  of  damages.^^  Thus,  butterine  shipped  to  New  Orleans 
was  damaged  in  transit,  through  the  carrier's  negligence.  On  its 
iirrival  its  market  value  in  its  damaged  condition  was  7|  cents  per 
pound,  at  which  price  it  was  sold.  Had  it  been  in  good  order,  its 
market  value  would  have  been  15  or  16  cents  a  pound.  It  was 
held  that  plaintiff  was  entitled  to  the  difference  with  interest.^* 

11  Sedg.  Dam.  §  853;  Forbes  v.  Railroad  Co.,  133  Mass.  154;  Baltimore  & 
O.  R.  Co.  V.  Pumpbrey,  59  Md.  390. 

12  Cbicago  &  N.  W.  Ry.  Co.  v.  Stanbro,  87  111.  195;  Rosenfield  v.  Express  Co., 
1  "Woods,  131,  Fed.  Cas.  No.  12,0G0;  Jellett  v.  Railroad  Co.,  30  Minn.  265,  15 
^^  W.  237. 

18  Notara  v.  Henderson,  L.  R.  7  Q.  B.  225;  Chicago,  B.  &  Q.  R.  Co.  v.  Hale, 
83  111.  360;  Brown  v.  Steamship  Co.,  147  Mass.  58,  16  N.  E.  717;  Louisville 
&  N.  R.  Co.  V.  Mason,  11  Lea,  116;    Magdeburg  General  Ins.  Co.  v.  Paulson, 

29  Fed.  530;    The  Mangalore.  23  Fed.  463.     See  Morrison  v.  Steamship  Co., 

30  Fed.  569,  571;  The  Compta,  5  Sawy.  137,  Fed.  Cas.  No.  3,070.  Bowman  v. 
Teall,  23  "Wend.  306;  Hackett  v.  Railroad  Co.,  35  N.  H.  390.  Carrier  is  not 
entitled  to  benefit  of  insurance  held  by  shipper.  Mobile  &  M.  Ry.  Co.  v. 
Jurey,  111  TI.  S.  584,  4  Sup.  Ct.  56(5;   Merricli  v.  Brainard,  38  Barb.  574. 

1*  Western  Manuf  g  Co,  v.  The  Guiding  Star,  37  Fed.  641. 


§§    106-107)  DAMAGES    FOR    DELAY.  255 

The  rule  applies  even  where  there  has  been  both  delay  and  dam- 
age to  the  goods,  though  during  the  delay  there  has  been  an  advance 
in  the  market  price,  by  reason  of  which  the  goods  in  their  damaged 
condition  are  worth  as  much  as  if  they  had  arrived  sound  and  on 
time.  In  such  a  case  it  was  held  that  the  owner  was  entitled  to 
recover  the  difference  between  the  market  price  on  the  day  of  de- 
layed delivery,  and  the  price  for  which  the  damaged  goods  sold.^" 
The  carrier  cannot  escape  liability  by  reason  of  the  advance  in  price 
between  the  dates  of  required  and  actual  delivery. 

SAME— DAMAGES  FOR  DELAY. 

106.  The  measure  of  damages   for  delay  is   the  difference 

bet-ween  the  value  of  the  goods  at  the  time  and 
place  fixed  for  delivery  and  their  value  at  the  time 
and  place  of  actual  delivery. 

107.  Where  the  value  of  the   goods   is  not  diminished   by 

the  delay,  the  measure  of  damages  is  the  value  of 
their  use  during  the  period  of  delay. 

The  first  rule  is  well  illustrated  by  a  leading  English  case.^«  A 
cap  manufacturer  delivered  to  a  carrier  cloth  bought  to  make  up 
into  caps  to  be  carried  to  M.  Owing  to  an  unreasonable  delay  in 
delivery,  the  cloth  was  received  too  late  for  use  that  season.  The 
carrier  knew  nothing  with  reference  to  plaintiff's  business  or  in- 
tentions. It  was  held  that  the  measure  of  damages  for  the  delay 
was  not  the  profits  plaintiff  might  have  made,  but  the  diminution 
in  value  of  the  goods  owing  to  the  time  for  finding  customers  having 
passed. ^^ 

15  Morrison  v.  Steamship  Co.,  36  Fed.  569.  See,  also,  The  Compta,  5  Sawy. 
137,  Fed.  Cas.  No.  3,070;   Gibbs  v.  Gildersleeve,  26  U.  C.  Q.  B.  471. 

16  Wilson  V.  Railway  Co.,  9  C.  B.  (N.  S.)  632. 

IT  See,  also.  Cutting  v.  Railway  Co.,  13  Allen,  381;  Weston  v.  Riiilway  Co., 
rA  Me.  376;  Sherman  v.  Railroad  Co.,  64  N.  Y.  254;  Ward  v.  Railroad  Co., 
47  N.  Y.  29;  Scott  v.  Steamship  Co.,  106  Mass.  46S;  Collard  v.  Railway  Co., 
7  Hurl.  &  N.  79;  Ayres  v.  Railway  Co.,  75  Wis.  215,  43  N.  W.  1122;  Ingledew 
V.  Railroad  Co.,  7  Gray,  86.  Cf.  The  Parana,  1  Prob.  Div.  452.  And  see  same 
case,  reversed,  .36  Law  T.  (N.  S.)  :58S.  Money  spent  looking  for  goods  may 
be  recovered.     Hales  v.  Railway  Co.,  4  Best  &  S.  m.     Cf.  Woodger  v.  Rail- 


256  DAMAGES    IN    ACTIONS    AGAINST   CARRIERS,  (Ch.    W 

The  second  rule  is  illustrated  by  an  action  for  delay  in  forward- 
ing money.  The  measure  of  damages  was  held  to  be  interest  on 
the  money  during  the  period  of  delay.^^  So  in  an  action  for  delay 
in  delivering  machinery,  the  measure  of  damages  was  said  to  be 
the  value  of  the  use  of  the  machinery,  or  the  sum  for  which  plain- 
tiff might  have  hired  like  machinery.^'* 

SAME— CONSEQUENTIAL  DAMAGES. 

108.  Consequential  damages  arising  from  a  carrier's  de- 
fault may  be  recovered  provided  they  are  natural 
and  probable  consequences  of  the  breach  of  duty. 

In  the  case  of  all  of  the  rules  heretofore  stated  with  reference  to 
the  measure  of  damages,  the  damages  allowed  have  been  for  losses 
directly  caused  by  the  carrier's  breach  of  duty.  But  consequential 
or  indirect  damages  arising  from  such  breaches  of  duty  may  also 
be  recovered,  provided  they  are  natural  and  probable  consequences. 
The  following  rules  may  be  stated:  Damages  beyond  the  differ- 
ence in  market  values  will  not  be  allowed  unless  the  consequences 
of  a  default  are  communicated  to  or  known  by  the  company  at  the 
time  and  place  of  delivery  to  them.  Only  such  losses  can  be  re- 
covered as  were  reasonably  contemplated  by  botli  parties  at  the 

way  Co.,  L.  R.  2  C.  B.  318.  Where  goods  have  been  resold  and  the  carrier 
notified  of  the  price,  such  price  is  to  be  taken  as  their  true  value,  Deming 
V.  Railroad  Co.,  48  N.  H.  455,  470;  but  where  the  carrier  is  not  notified  of  such 
price,  the  market  price  is  considered  their  true  value.  Home  v.  Midland  Ry.  Co., 
L.  R.  8  C.  P.  131.  Cf .  Illinois  Cent.  R.  Co.  v.  Cobb,  64  111.  128,  where  shipper  was 
allowed  to  recover  on  basis  of  contract  price.  Where  goods  have  been  sold 
"to  arrive,"  and  the  market  value  at  the  time  when  they  should  have  arrived 
was  greater  than  the  contract  price,  recovery  has  been  allowed  on  the  ba.sis 
of  market  value.  Rodocanachi  v.  Milburn,  L.  R.  18  Q.  B.  Div.  67.  Interest 
should  be  allowed.  Dunn  v.  Railroad  Co.,  68  Mo.  268;  Houston  &  T.  C.  Ry. 
Co.  V.  Jackson,  62  Tex.  209;  Newell  v.  Smith,  49  Vt.  255.  Damage  for  shrink- 
age in  weight  of  live  stock  may  be  recovered.  Illinois  Cent.  R.  Co.  v.  Owens, 
53  111.  391;  Sturgeon  v.  Railroad  Co.,  65  Mo.  569.  It  has  been  held  that  the 
rule  does  not  apply  to  delay  in  transportation  by  sea.  The  Parana,  1  Prob, 
Div.  452,  2  Prob.  Div.  118.    See  criticism  of  this  case  in  Sedg.  Dam,  §  855. 

18  U.  S.  Exp.  Co.  V.  Haines,  67  111.  137. 

19  Priestly  v.  Railroad  Co.,  26  111.  206. 


§    109)  DAMAGES  FOR   INJURIES    TO    PASSENGER.  257 

time  the  contract  for  carriage  was  made  as  likely  to  arise  from  a 
breach,  and  not  losses  arising  out  of  circumstances  then  wholly  un- 
known to  the  carrier.  Damages  will  be  given  only  for  the  reason- 
able and  proximate,  and  not  for  the  remote,  consequences  of  the 
breach  of  duty.^° 

Illustrations. 

In  actions  for  failure  or  refusal  to  transport,  losses  on  subcon- 
tracts may  be  recovered,  provided  the  carrier  had  notice  of  such 
contracts;  ^^  otherwise  not.-^  "WTiere  the  carrier  knows  that  the 
material  is  needed  in  carrying  on  work  by  the  plaintiff,  "the  natural 
consequences  of  delay  and  stoppage  of  work,  and  payment  of  wages 
and  expenses  arising  therefrom,  and  the  loss  from  not  having  the 
work  finished  at  the  time  it  otherwise  would  have  been,"  may  be 
recovered;  but  the  increased  expense  of  labor  in  doing  the  work  is 
too  remote.  ^^ 

In  actions  for  loss  or  nondelivery  of  goods,  the  reasonable  expense 
of  searching  for  them  may  be  recovered;  ^*  but  damages  for  delay 
in  completing  a  house,  caused  by  the  loss  of  a  set  of  plans  nf  which 
the  defendant  had  no  notice,  is  too  remote.^* 

109.     CARRIERS  OF  PASSENGERS— DAMAGES  FOR  INJURIES 

TO  PASSENGER. 

"The  obligations  or  responsibilities  of  public  carriers  do  not  arise 
altogether  or  mainly  out  of  contracts;  they  are  principally  imposed 

20  Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46  Miss.  458;  Hadley  v.  Baxendale, 
9  Exch.  341;  Gee  v.  Railway  Co.,  6  Hurl.  &  N.  211.  As  to  sufficiency  of  notice 
of  special  circumstances,  see  Home  v.  Railway  Co.,  L.  R.  8  C.  P.  131,  affirm- 
ing L.  R.  7  C.  P.  583. 

21  Cobb  V.  Railroad  Co.,  38  Iowa,  601,  630. 
2  2  Harvey  v.  Railroad  Co..  124  Mass.  421. 

2  3  Pennsylvania  R.  Co.  v.  Titusvillo  tt  P.  P.  R.  Co.,  71  Pa.  St.  350. 

24  Hales  V.  Railway  Co.,  4  Best  &  S.  66;  Farwell  v.  Davis,  06  Barb.  73; 
Xortli  Missouri  R.  Co.  v.  Akers,  4  Kau.  453;  Davis  v.  Railroad  Co.,  1  Disn.  Zi. 
Contra,  Mississippi  Cent.  R.  Co.  v.  Kennedy,  41  Miss.  671. 

2s  Mather  v.  Express  Co..  138  Mass.  .55.     Conscquontial  damages  for  dohiy. 

see  Black  v.  Baxendale,  1  Exch.  410;   Vicksburg  &  M.  R.  Co.  v.  Ragsdale,  46 

Miss.  458;    Favor  v.  Pliilbrick,  5  N.  H.  358;    Ilorue  v.  Railway  Co..  L.  R.  7 

C.  P.  583;   Wilson  v.  Railway  Co.,  IS  Kng.  Law  iV:  Eq.  557;    Crindle  v.  Eastern 

•Exp.  Co.,  67  Me.  317;  Gibbs  v.  Glldersleeve,  26  U.  C.  Q.  B.  471. 

I.AW  DAM.— 17 


258  DAMAGES    IN    ACTIONS    AGAINST    CARRIERS.  (Cll.    10 

by  law.  The  refusal  to  undertake  the  conveyance  of  a  passenger 
without  excuse,  or  when  actionable,  is  merely  a  violation  of  a  car- 
rier's duty.  He  has  refused  to  contract.  So  his  duty  to  carry  with 
care,  though  it  may  to  some  extent  be  regulated  and  restricted  by 
contract,  is  imposed  by  law,  and  cannot,  as  is  generally  held,  be  con- 
tracted away.  Hence  actions  against  these  carriers  are  generally 
in  tort  for  negligence,  or  for  misconduct  involving  a  breach  of  duty. 
Contracts,  however,  are  usually  made  fixing  the  extent  of  the  route, 
the  mode  of  conveyance,  the  kind  of  accommodations,  the  time,  etc. ; 
and,  therefore,  actions  founded  upon  such  contracts  may  be  main- 
tained. Whether  the  action  be  upon  the  breach  of  duty  or  for  viola- 
tion of  contract,  to  the  extent  that  they  involve  the  same  acts  and 
omissions,  the  damages  as  measured  by  law  are  substantially  the 
same."^'  The  consequences  in  this  class  of  cases  fall  directly  upon 
the  person,  and  in  most  cases  are  not  distinguishable  from  those  of 
a  tort.  In  either  tort  or  contract  the  damages  are  measured  by  the 
probable  Or  natural  consequences  of  the  wrong,  but  the  natural  and 
probable  consequences  of  a  breach  of  contract  must  be  determined 
with  regard  to  all  the  facts  known  to  the  parties  at  the  time  the  con- 
tract was  made.  Thus  in  Hobbs  v.  Railway  Co.^^  it  appeared  that 
plaintiff,  with  his  wife  and  children,  were  set  down  at  the  wrong  sta- 
tion, and,  being  unable  to  get  a  conveyance,  they  were  obliged  to 
walk,  the  wife  catching  a  severe  cold.  It  was  held  that  there  could 
be  no  recovery  for  the  expense  of  the  illness,  because  it  was  not  with- 
in the  contemplation  of  the  parties,  nor  a  probable  consequence  of 
having  to  walk  home.  The  action  was  on  the  contract.  The  author- 
ity of  this  decision  was  much  shaken  by  the  opinions  of  Bramwell 
and  Brett,  L.  J.,  in  McMahon  v.  Field,^®  and  has  been  practically 
neutralized  in  most  states  by  holding  that  it  does  not  apply  where 
the  action  sounds  in  tort;  and  cases  of  this  character  have  been  al- 
most always  treated  as  sounding  in  tort.^'    Thus,  in  an  action  for 

26  3  Suth.  Dam.  §  93-4. 

27  10  Q.  B.  111. 

28  7  Q.  B.  Div.  591. 

29  Alabama  G.  S.  R.  Co.  v.  Heddlestou.  82  Ala.  218,  3  South.  53;  Baltimore 
C.  P.  Ry.  Co.  V.  Kemp,  61  Md.  74,  619;  Helm  v.  McCaugban,  32  Miss.  17; 
Yortou  V.  Railway  Co..  62  Wis.  367.  21  N.  W.  516,  and  23  N.  W.  401.  It  bas 
been  fully  followed  iu  some  jurisdictions.  Pullman  Palace  Car  Co.  v.  Barker, 
4  Colo.  344;    Murdock  v.  Railroad  Co.,  133  Mass.  15.     It  has  been  said,  where 


§    110)  EXEMPLARY    DAMAGES    AND    MENTAL    SUFFERING.  2o9 

neglect  to  transport  a  passenger  across  the  Isthmus  of  Panama  ac- 
cording to  contract,  the  plaintiff  was  allowed  to  recover  the  expense 
of  a  subsequent  illness  caused  by  being  left  in  that  unhealthy  coun- 
try.^°  Brown  v.  Railway  Co.^^  was  a  case  very  similar  to  the  Hobbs 
Case.  In  an  elaborate  opinion  the  court  reached  a  conclusion  di- 
rectly opposite  to  that  reached  in  the  Hobbs  Case.  Mr.  Sedgwick 
has  admirably  stated  the  pith  of  the  whole  matter  as  follows:  "Up- 
on the  whole,  these  cases  seem  to  illustrate  very  strongly  a  point  up- 
on which  too  much  insistence  cannot  be  laid, — that  the  case  of  Had- 
ley  V.  Baxendale  introduced  no  new  rule  of  damages.  For  proximate 
and  natural  consequences  of  the  defendant's  act,  whether  it  be  a 
breach  of  contract  or  of  tort,  a  recovery  can  always  be  had.  The 
•only  meaning  of  the  rule  with  regard  to  the  contemplation  of  the 
parties  is  that  in  contract  a  particular  species  of  proof  as  to  special 
consequences  is  often  available,  which  is  not  so  in  tort."  ^^ 

110.     SAME— EXEMPLARY  DAMAGES  AND  MENTAL 
SUFFERING. 

There  is  another  light  in  which  the  form  of  action  becomes  im- 
portant. Where  the  action  is  upon  the  contract,  exemplary  dam- 
ages cannot  be  recovered;  ^^  but  where  the  action  is  for  a  tort, 
founded  on  a  breach  of  the  public  duty,  exemplary  damages  maj 
be  given  in  proper  cases.^*     So,  also,  it  is  usually  held  that  dam 

the  breach  of  couliact  was  not  also  a  tort,  the  rule  in  Hobb's  Case  will  apply. 
2  Sedg.  Dam.  §  868;  Cincinnati,  H.  &  I.  R.  Co.  v.  Eaton,  94  Ind.  474;  Brown 
V.  Railway  Co.,  54  Wis.  342.  11  N.  W.  356.  911.  No  such  case  has  been  found. 
A  passenger  may  declare  for  a  breach  of  cortract,  where  there  is  one,  but  it 
is  at  his  election  to  proceed  as  for  a  tort  where  there  has  been  persoual  injury 
suffered  by  the  negligence  or  wrongful  act  of  the  carrier,  or  the  agents  of  the 
company;  and  in  such  action  the  plaintiff  is  entitled  to  recover  according  to 
the  principles  pertaining  to  that  class  of  actions,  as  distinguished  from  actions 
-on  contract.     Baltimore  City  Pass.  Ry.  Co   v.  Kemp,  Gl  Md.  619. 

30  Williams  v.  Vauderbilt.  28  N.  Y.  217. 

81  54  Wis.  342,  11  N.  W.  3.j6,  911. 

8  2  2  Sedg.  Dam.  §  871. 

88  New  Orleans,  J.  &  G.  X.  II.  Co.  v.  Hurst,  36  Miss.  660;  Hamlin  v.  Railway 
Co.,  1  Hurl.  &  N.  408,  411. 

84  Heirn  v.  McCaughau,  32  Miss.  17;  Thoiup.  Carr.  p.  046,  §  5;  Id.  p.  573, 
§  27. 


2G0  DAMAGES    IN    ACTIONS    AGAINST    CARRIERS.  (Ch.    10 

ages  for  mental  suffering  cannot  be  recovered  in  an  action  on  a 
contract, ^"^  though  the  rule  is  far  from  being  settled,  and  is  denied 
by  many  courts  of  ability.^' 

111.     SAME— PERSONAL  INJURY. 

In  actions  for  persoual  injury  to  a  passenger  the  measure  of  dam- 
ages is  usually  the  same  as  in  ordinary  cases  of  personal  injury. 
Compensatory  damages  for  pain,  mental  and  physical,  and  for  loss 
of  time,  medical  expenses,  diminution  of  earning  power,  and  the  like,^ 
may  always  be  recovered.^"  Damages  cannot  be  recovered  for 
mere  fright,  but,  when  a  nervous  shock  naturally  results  in  physical 
injury,  damages  may  be  recovered  therefor."^* 

112.  SAME— FAILURE  TO  CARRY  PASSENGER— DELAY. 

Damages  for  failure  to  transport  a  passenger  include  compensa- 
tion for  the  increase  of  cost  of  carriage  by  another  conveyance,  the- 
loss  of  time,  and  other  ordinary  expenses  of  delay.^^  Plaintiff  can 
incur  only  reasonable  expense  in  avoiding  the  consequences  of  the 
delay.*"  Whether  or  not  plaintiff  would  have  adopted  the  course 
he  should  have  adopted  if  the  delay  had  occurred  through  his  own 
fault,  and  he  had  not  the  carrier  to  look  to  for  compensation,  has 
been  suggested  as  a  test  of  reasonableness.*^  Substantially  the 
same  principles  are  applicable  in  actions  for  delay. 

3  5  Walsh  V.  Railway  Co.,  42  Wis.  23. 

36  See  able  note  by  H.  Campbell  Black  in  11  C.  C.  A.  5.56.  Also  able  note 
by  William  L.  Clark,  Jr.,  in  15  C.  C.  A.  235.     See,  also,  ante,  p.  102. 

37  Sedg.  Dam.  §  SBO.     See,  also.  Id.  §  481  et  seq. 

3  8  Bell  V.  Railway  Co.,  26  L.  R.  Ir.  428;  Victorian  Ry.  Com'rs  v.  Coultas,  L. 
R.  13  App.  Cas.  222. 

39  Baltimore  &  O.  R.  Co.  v.  Carr,  71  Md.  135,  17  Atl.  1052;  Eddy  v.  Harris, 
78  Tex.  661.  15  S.  W.  107;  Porter  v.  The  New  England,  17  Mo.  290;  The 
Zenobia,  1  Abb.  Adm.  80,  Fed.  Cas.  No.  18,209;  Williams  v.  Vanderbilt,  28  N.. 
Y.  217. 

4  0  Sedg.  Dam.  §  8G2. 

*i  Le  Blanche  v.  Railway  Co.,  1  C.  P.  Div.  286. 


§    113)       FAILURE  TO  CARRY  TO  DESTINATION WRONGFUL  EJECTION.       261 


113.     SAME— FAILURE  TO  CARRY  TO  DESTINATION- 
WRONGFUL  EJECTION. 

Where  a  carrier  fails  to  carry  a  passenger  to  his  destination,  and 
sets  him  down  at  some  intermediate  point,  compensation  may  be 
recovered  for  all  the  expenses  of  delay,*^  including  loss  of  time** 
and  cost  of  a  reasonable  conveyance  to  his  destination.**  He  may 
also  recover  compensation  for  the  indignity  of  the  expulsion  from 
the  train,  and,  if  there  are  aggravating  circumstances,  he  may  re- 
cover exemplary  damages.*^  Where,  by  the  fault  of  the  carrier's 
agents,  and  without  the  passenger's  fault,  the  ticket  of  the  passen- 
ger is  not  such  a  one  as  he  should  have  to  entitle  him  to  passage, 
the  carrier  will  be  liable  in  damages  for  expelling  him.*^  It  is  an 
interesting  question  to  determine  the  true  measure  of  damages  in 
such  a  case.  What  are  the  natural  and  probable  consequences  of 
such  a  wrong?  This  must  be  answ'ered  with  a  view  to  the  nature 
of  the  wrong  and  the  time  it  was  committed.  It  has  been  con- 
tended that  the  only  natural  and  legitimate  result  of  selling  plain- 
tiff a  wrong  ticket,  or  depriving  him  of  a  proper  one,  is  to  compel 
him  to  pay  his  fare  a  second  time;  and  that  he  commits  a  breach 
of  social  duty  in  failing  to  protect  himself  thus,  at  trifling  expense, 

<2  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364;  Pennsylvania  R.  Co.  v.  Connell, 
127  111.  419,  20  N.  E.  89;    carrying  beyond,  Trigg  v.  Railway  Co.,  74  Mo.  147. 

<3  Hamilton  v.  Railroad  Co.,  53  N.  Y.  25. 

4*  Indianapolis,  B.  &  W.  Ry.  Co.  v.  Birney,  71  111.  391;  Pennsylvania  R.  Co. 
T.  Connell,  127  111.  419,  20  N.  E.  S9;  Francis  v.  Transfer  Co.,  5  .Mo.  App.  7; 
Hamilton  v.  Railroad  Co.,  53  N.  Y.  25. 

*!i  Hanson  v.  Railway  Co.,  62  Me.  84;  Yates  v.  Railroad  Co.,  67  N.  Y.  100. 
See,  also,  cases  cited  infra,  notes  51,  52. 

46  Lake  Erie  &  W.  R.  Co.  v.  Fix,  88  lud.  381;  Kansas  City,  M.  &  B.  R.  Co. 
V.  Riley,  08  Miss.  765,  9  South.  443;  MacKay  v.  Railroad  Co.,  34  W.  Va.  63,  11 
S.  E.  737;  Mmdock  v.  Railroad  Co.,  137  Mass.  293;  Hufford  v.  Railroad  Co., 
64  Mich.  631,  31  N.  W.  -544:  Id..  53  Mich.  118.  18  N.  W.  580;  Yorton  v.  Rail- 
road Co.,  54  Wis.  234,  11  N.  W.  482;  Id.,  62  Wis.  367,  21  N.  W.  516.  But  if 
by  mutual  mistake,  or  by  fault  of  the  passenger,  his  ticket  is  one  which  does 
not  entitle  him  to  passage,  he  may  properly  no  ejected,  even  though  ho  may 
have  a  right  of  action  against  the  carrier  for  selling  him  an  improper  ticket. 
Yorton  v.  Railway  Co.,  54  Wis.  234,  11  N.  W.  482;  Id.,  62  Wis.  367,  21  N.  W. 
516;  Bradshaw  v.  Railroad  Co.,  135  Mass.  407;  Frederick  v.  Railroad  Co.,  37 
Mich.  342. 


262  DAMAGES    IX    ACTIONS    AGAINST    CARRIERS.  (Ch.    lO 

from  the  consequences  of  tlie  fault  or  mistake  of  the  carrier's  serv- 
ant.*^ If  he  does  so,  the  amount  paid,  with  interest,  furnishes  the 
measure  of  damages.  But  Nve  apprehend  that  he  is  not  compelled 
to  do  so.  He  ma}'  elect  to  leave  the  train,  and  in  that  case  may 
recover  not  only  the  amount  of  the  additional  fare  which  he  is  sub- 
sequently obliged  to  pay  in  order  to  reach  his  destination,  but  all 
damages  sustained  by  him  as  a  direct  and  natural  consequence  of 
the  ejection.**  The  reason  for  this  is  that  the  rule  of  avoidable 
consequences  does  not  require  one  to  anticipate  a  wrong,  and  to 
take  steps  to  avoid  its  consequences,  before  it  is  committed.  He  is 
entitled  to  presume  that  no  wrong  will  be  committed.  The  rule 
merely  requires  one  who  has  been  already  injured  to  use  all  reason- 
able means  to  make  the  loss  as  light  as  possible.  Whether  it  is  a 
passenger's  duty,  therefore,  to  pay  his  fare  a  second  time,  and  thus 
avoid  ejection,  depends  upon  when  the  wrong  or  breach  of  duty  is 
committed.  This  is  clearly  at  the  time  the  ejection  takes  place. 
Where  the  action  is  for  the  breach  of  the  contract  or  duty  to  carry, 
this  is  obviously  true.  But  it  is  equally  true  where  the  action  is 
founded  on  the  neglect  or  mistake  of  the  carrier's  servant  In  regard 
•to  the  passenger's  ticket.  In  such  case  the  wrong  is  not  committed 
until  the  neglect  has  resulted  in  damage;  that  is  to  say,  until  the 
passenger  has  been  expelled  from  the  train.  Negligence  without 
damage  is  not  a  wrong. 

As  between  the  passenger  and  the^  conductor  who  ejects  him  the 
ticket  is  conclusive  evidence  as  to  the  passenger's  right  of  pas- 
sage.*' If  the  passenger  has  not  a  proper  ticket,  the  conductor 
may  eject  him,^"  and,  though  the  carrier  is  liable  for  such  ejection 
because  it  is  a  natural  and  probable  consequence  of  the  negligence 

*7  Yorton  v.  Railway  Co.,  62  Wis.  367,  21  N.  W.  516;   2  Sedg.  Dam.  §  805. 

4  8  Yorton  v.  Railway  Co.,  62  Wis.  367,  371,  21  N.  W.  516. 

*9  Hale,  Bailm.  p.  510. 

BO  "If  a  passenger  pay  a  railroad  agent  fare  for  a  certain  trip,  and  by  mis- 
take of  the  agent  is  given  a  ticket  not  answering  for  that  trip,  but  one  in  an 
opposite  direction,  and  the  conductor  refuses  to  recognize  such  ticket,  and 
denaands  fare,  which  the  passenger  fails  to  pay,  ejection  of  the  passenger 
from  the  train  without  unnecessary  force  will  not  be  ground  of  action  against 
the  company  as  for  a  tort;  but  the  action  mas  and  must  be  based  on  the 
breach  of  contract  to  convey  the  passenger."  MacKay  v.  Railroad  Co.,  34  W. 
Va.  65.  11  S.  E.  737. 


§    113)       FAILURE  TO  CARRY  TO  DESTINATION WRONGFUL  EJECTION.       263 

of  a  prior  servant  in  not  furnishing  the  passenger  with  a  proper 
ticket,  he  is  not  liable  for  exemplary  damages,  where  the  conductor 
acts  considerately  in  making  the  ejection. °^  It  is  generally  held, 
however,  that  a  passenger  may  recover  compensatory  damages  for 
mental  suffering  arising  from  the  indignity  of  being  expelled  from 
a  train,  even  though  the  conductor  acted  considerately.^' 

»i  Fitzgerald  v.  Railroad  Co.,  50  Iowa.  79;  Philadelphia,  W.  &  B.  R.  Co. 
V.  Hoeflich,  62  Md.  300;  Logan  v.  Railroad  Co.,  77  Mo.  663;  Hamillon  v.  Rail- 
road Co.,  53  N.  Y.  25;  Yates  v.  Railroad  Co.,  67  N.  Y,  100;  Tomlinson  v.  Rail- 
road Co.,  107  N.  C.  327,  12  S.  E.  138. 

6  2  Chicago  &  A.  R.  Co.  v.  Flagg,  43  111.  364;  Chicago  &  N.  W.  Ry.  Co.  v. 
Williams,  55  111.  185;  Chicago  &  N.  W.  Ry.  Co.  v.  Chisholm,  79  111.  584;  Penn- 
sylvania R.  Co.  V.  ConneU,  112  111,  295;  Lake  Erie  &  W.  Ry.  Co.  v.  Fix,  88 
Ind.  381;  Shepard  v.  Railway  Co.,  77  Iowa,  54,  41  N.  W.  564;  Carsten  v.  Rail- 
road Co.,  44  Minn.  454,  47  N.  W.  49;  Hamilton  v.  Railroad  Co.,  53  N.  Y.  25; 
Stutz  v.  Railroad  Co.,  73  Wis.  147,  40  N.  W.  653;  2  Sedg.  Dam.  §  865.  It 
has  been  held  that,  where  the  conductor  acts  considerately,  the  plaintiff  should 
have  felt  no  sense  of  insult,  and  therefore  cannot  recover  damages  for  the 
indignity.  Paine  v.  Raih'oad  Co.,  45  Iowa,  569;  Fitzgerald  v.  Railroad  Co., 
50  Iowa,  79;  Batterson  v.  Railway  Co.,  49  Mich.  184,  13  N.  W.  508.  Such  is 
not  the  general  rule. 


264  DAMAGES    IN    ACTlOi^S    AGAINST    TELEGRAPH    COMPANIES.       (Gil.    11 

CHAPTER  XI. 

DAMAGES  IN   ACTIONS  AGAINST   TELEGRAPH   COMPANIES, 

U4.  Public  Nature. 

115.  Action  by  Sender. 

116.  Action  by  Receiver. 
117-118.  Compensatory  Damages. 

119.  Proximate  and  Certain  Damages. 

120.  Remote  and  Speculative  Damages. 

121.  Damages  not  within  Contemplation  of  Parties-Notice  of  Purpose 

and  Importance  of  Message. 

122.  Messages  not  Understood— Cipher  Messages. 

123.  Avoidable  Consequences. 

124.  Exemplary  Damages. 

PUBLIC  NATURE. 

114.  Telegraph  companies  exercise  a  public  calling,  and 
are  bound  to  accept  and  carefully  transmit  all  mes- 
sages offered. 

In  some  respects  the  liabilities  of  telegraph  companies  resemble 
those  of  a  common  carrier.  It  is  their  duty  to  accept  and  transmit 
messages  for  all  who  offer  to  contract  with  them  for  that  purpose.^ 
It  is  their  duty  to  enter  into  such  contracts.  Accordingly,  an  ac- 
tion for  failure  to  transmit  a  message  may  be  regarded  either  as  a 
breach  of  contract,  or  as  a  breach  of  the  public  duty,  i.  e.  a  tort. 
In  practice,  especially  under  the  reformed  codes  of  procedure,  it  is 
extremely  difficult  to  say  whether  the  action  sounds  in  contract  or 
tort.  Formerly  it  was  held,  in  many  cases,  that  telegraph  compa- 
nies, as  common  carriers  of  intelligence,  were  subject  to  the  same 
absolute  liability  as  exists  in  the  case  of  common  carriers  of  goods; 
but  there  is  an  essential  difference  in  regard  to  the  subject-matter 

1  "The  business  of  telegraph  companies,  like  that  of  common  carriers,  la 
in  the  nature  of  a  public  employment,  as  they  hold  out  to  the  public  that  they 
are  ready  and  willing  to  transmit  intelligence  for  any  one  upon  the  payment 
of  their  charges,  and  not  for  particular  persons  only."  De  Rutte  v.  Telegraph 
Co.,  1  Daly,  547. 


§    115)  ACTION    BY    SENDER.  265 

of  the  respective  contracts.^  Common  carriers  actually  transport 
chattels.  Telegraph  companies  really  transport  nothing.  It  is  a 
metaphor  to  say  that  they  carry  intelligence.  Accordingly,  it  is 
now  settled  that  telegraph  companies  are  not  common  carriers. 
They  are  liable  only  for  negligence.  Like  common  carriers,  tele- 
graph companies  may  limit  their  liability  by  reasonable  regulations 
brought  home  to  the  contracting  party.' 

ACTION  BY  SENDER. 

115.  The  sender  of  a  message  may  maintain  an  action 
against  the  company  for  failure  to  transmit,  or  mis- 
take or  delay  in  transmitting,  a  message. 

Such  actions  are  usually  actions  of  contract,  and  the  ordinary  rules 
as  to  the  measure  of  damages  in  actions  for  breach  of  contract  ap- 
ply. Every  breach  of  contract  is  an  actionable  injury,  and  for 
every  actionable  injury  there  is  an  absolute  right  to  damages.  If 
no  actual  damage  can  be  shown,  the  party  injured  may  recover  nom- 
inal damages  only;  but  to  this  much  he  is  entitled  absolutely.*  He 
is  entitled  to  nominal  damages  even  though  the  breach  of  contract 
may  in  fact  have  been  beneficial  to  him.     In  Hibbard  v.  Telegraph 

2  Common  earners  are  held  to  the  responsibility  of  insurers  for  the  safe 
delivery  of  the  property  intrusted  to  their  care  upon  grounds  of  public  pol- 
icy, to  prevent  fraud  or  collusion  with  thieves,  and  because  the  owner,  hav- 
ing surrendered  up  the  possession  of  his  property,  is  generally  unable  to  show 
how  it  was  lost  or  injured.  These  reasons  do  not  apply  to  telegraph  compa- 
nies, and  they  are  not  held  to  the  responsibility  ol  insurers  for  the  correct 
transmission  and  delivery  of  intelligence.  As  the  value  of  their  service,  how- 
ever, consists  in  the  message  being  correctly  and  diligently  transmitted,  thoy 
necessarily  engage  to  do  so;  and  if  there  is  an  unreasonable  delay,  or  an  er- 
ror committed,  it  is  presumed  to  have  originated  from  their  negligence,  un- 
less they  show  that  it  occurred  from  causes  for  which  they  are  not  answer- 
able.    De  Kutte  v.  Telegraph  Co..  1  Daly.  .'547. 

3  They  may  qualify  their  liability  to  the  effect  that  they  will  not  be  an- 
swerable for  errors  unless  a  message  is  repeated,  but  this  condition  must  be 
brought  home  to  the  knowledge  of  the  person  who  brings  the  message  for 
transmission.     De  Rutto  v.  Tclcgrapii  Co.,  1  Daly,  HIT. 

*  First  Nat.  Bank  of  I'.arnesville  v.  \V.  IJ.  Tc;!    Co.,  :J0  Ohio  St.  5.">. 


266  DAMAGES    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.        (Cil.    11 

Co."  a  telegraph  compauy  had  failed  to  deliver  a  telegram  directing 
the  purchase  of  certain  goods,  and  the  sender  escaped  a  loss  which 
he  would  have  sustained  had  the  message  been  delivered  and  the 
goods  bought.  It  was  held  that  he  could  recover  nominal  damages, 
for  the  company  had  broken  its  contract. 

'  ACTION  BY   RECEIVER. 

116.  An  action  may  be  maintained  by  the  receiver  of  a 
message  for  damages  caused  by  the  company's  de- 
fault in  its  transmission. 

A  telegraph  company  is  liable  to  the  receiver  of  a  message  for 
damages  caused  by  their  default  in  its  transmission.  This  liability 
is  rested  sometimes  on  contract  and  sometimes  on  tort.  It  does  not 
necessarily  follow  that  the  contract  is  made  with  the  person  by 
whom  or  in  whose  name  a  message  is  sent.  He  may  have  no  in- 
terest in  the  subject-matter  of  the  message,  but  the  party  to  whom 
it  is  addressed  may  be  the  only  one  interested  in  its  correct  or  dili- 
gent transmission;  and  where  that  is  the  case,  he  is  the  one  with 
whom  the  contract  is  made.'  In  this  respect,  actions  against  tele- 
graph companies  are  analogous  to  actions  against  common  carriers. 
Whether  the  action  against  the  carrier  is  to  be  brought  by  the  con- 
signor or  the  consignee  depends,  as  a  general  rule,  upon  which  one 
the  legal  right  to  the  property  is  vested  in.  If  it  is  vested  in  the 
consignee,  the  consignor,  in  making  the  contract  with  the  carrier, 
is  regarded  as  having  acted  as  the  agent  of  the  consignee,''  Where 
the  action  by  the  consignee  is  regarded  as  sounding  in  tort,  the 
liabilitj-  is  based  upon  breach  of  the  public  duty  imposed  on  tele- 
graph companies  to  transmit  messages.  "Every  contract  made  by 
a  telegraph  company  is  made  in  pursuance  of  a  duty  imposed  upon 
it  by  the  state,  and  any  breach  of  it  is  not  only  a  breach  of  con- 
tract, but  a  tort;  for  the  duty  assumed  involves  the  performance 
of  this  contract,  not  merely  as  it  affects  the  sending,  but  as  it  af- 
fects the  delivering.     The  telegraph  company  is  under  a  duty  to  all 

6  33  Wis.  558. 

6  De  Rutte  v.  Telegraph  Co.,  1  Daly,  547. 

7  Hale,  Bailm.  543. 


§§    11<-11S)  COMPENSATORY    DAMAGES.  267 

the  world,  and  breach  of  its  contract  with  the  sender  is  a  breach  of 
this  duty,  as  it  affects  the  receiver."  *  There  is  negligent  or  willful 
conduct  resulting  in  damage,  and  this,  as  has  been  seen,  attaches 
liability. 

COMPENSATORY  DAMAGES. 

117.  Compensation  may  be  recovered  for  all  losses  vsrhich 

are  the  natural  and  probable  consequence  of  a  de- 
fault in  the  transmission  of  messages. 

118.  What  are  natural  and  probable  consequences  must  be 

determined   \^th   reference    to    the    facts    contem- 
plated by  the  parties. 

Distinction  between  Tort  and  Breach  of  Contract  Immaterial. 

It  is  not  necessary,  where  there  is  no  question  as  to  punitive  or 
exemplary  damages,  to  distinguish  cases  in  which  the  action  is  one 
for  breach  of  the  contract  to  transmit  and  deliver  the  message  from 
cases  in  which  the  action  is  on  the  case  for  the  tort  in  failing  to 
perform  the  duty  devolved  on  the  telegraph  company  under  the 
contract.  "The  substance  and  nature  of  the  default  and  the  con- 
sequent injury  are  the  same  in  either  view,  and,  in  the  absence  of 
circumstances  warranting  the  imposition  of  punitory  damages,  the 
measure  of  damages  must  be  the  same,  whatever  be  the  form  of  the 
action." ' 

Damages  for  Natural  and  Contemplated  Consequences  Only. 

The  liability  of  telegraph  companies  is  determined  under  the  rules 
laid  down  in  Hadley  v,  Baxendale,^"  WTiere  the  company  has  no 
notice  of  the  nature  of  the  transaction,  either  from  the  message  it- 
self, or  from  information  given  it  at  the  time  of  sending  the  mes- 
sage, the  only  damages  recoverable  are  the  cost  of  the  message." 
There  is  much  difficulty  in  applying  the  rule  of  contemplated  con- 
sequences, owing  to  the  peculiar  nature  of  the  contract.  Perhaps 
as  often  as  otherwise  the  telegraph  company  knows  nothing  of  the 

«  Sedg.  Dam.  878. 

»  W.  U.  Tel.  Co.  V.  Rogers,  G8  Miss.  748,  9  South.  81i3. 

10  9  Exch.  341. 

»i  Beaupr6  v.  Telegraph  Co.,  21  Minn.  155. 


2GS         DAMAGES    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.       (Cll.    11 

■object  of  the  contract  or  the  probable  consequences  of  a  breach. 
Many  messages  are  written  in  cipher.  Some  messages  disclose 
more  than  others.  For  instance,  a  message  may  show,  on  its  face, 
that  it  relates  to  a  purchase  or  sale  of  goods;  but  it  may  give  no 
notice  that  the  purchase  or  sale  was  made  with  reference  to  a  sub- 
contract, while  another  message  might  disclose  the  fact  of  a  sub- 
contract. In  one  case,  therefore,  damages  for  loss  on  the  subcon- 
tract might  be  recovered,  while  in  the  other  it  could  not.  "The 
telegraph  company  usually  derives  its  only  knowledge  of  the  object 
to  be  effected  from  the  message  itself,  and  hence  in  some  cases  is 
in  absolute  ignorance,  in  others  has  complete  knowledge,  and  in 
still  others  can  only  surmise  what  the  object  is,  or  what  the  loss  in 
consequence  of  any  mistake  or  negligence  in  transmission  will  be."  ^* 
In  this  class  of  cases,  therefore,  the  principal  contest  is  usually  as 
to  how  far  the  company  can  be  charged  with  knowledge  of  the  object 
of  the  message.  Each  case,  therefore,  must  be  decided  largely  upon 
its  own  facts. 


SAME— PROXIMATE  AND  CERTAIN  DAMAGES. 

119.  Damages   may  be   recovered   for  losses   sustained   or 
gains  prevented  where  they  are  the  proximate  and 
certain  result  of  defendant's  fault. 
EXCEPTION" — Damages  cannot  be  recovered  for  loss  of 
unlawful  contract  or  gain. 

Losses  Sustained  or  Gains  Prevented. 

Whenever  it  can  be  shown  that,  by  reason  of  a  telegraph  com- 
pany's inexcusable  failure  to  send  or  to  deliver  a  telegram,  or  of 
an  error  in  its  transmission,  the  sender  has  failed  to  make  some 
gain  or  profit  which  he  would  otherwise  have  made,  or  has  sustained 
«ome  loss  which  he  would  not  otherwise  have  sustained,  and  the 
amount  thereof  can  be  shown  with  certainty,  the  gain  or  profit  pre- 
vented or  loss  sustained  is  a  proper  element  of  damages  in  an  action 
against  the  company  for  its  breach  of  contract.  This,  of  course,  ia 
subject  to  the  qualification  laid  down  in  Hadley  v.  Baxendale,  that 

12  Sedgw.  Dam.  §  ST5. 


§    119)  PROXIMATE    AND    CERTAIN    DAMAGES.  269* 

such  damage  must  hare  arisen  naturally  from  the  company's  breach 
of  contract  itself,  or  must  have  been  in  the  contemplation  of  the 
parties  when  they  made  the  contract  as  a  probable  result  of  a  breacb 
thereof. 

Same — Illustrations — Losses  Sustained. 

The  following  illustrations  show  the  application  of  the  rule  where 
losses  have  been  sustained: 

In  W.  U.  Tel.  Co.  v.  Landis  ^^  plaintiffs'  agent  had  delivered  to 
defendant,  for  transmission  to  them,  a  message  that  he  had  bought 
two  car  loads  of  sheep  at  $5.60  per  hundred.  In  the  course  of  trans- 
mission,  the  word  "sixty"  in  the  message  was  changed  to  "six." 
Plaintiffs,  relying  on  the  message,  sold  the  sheep  before  arrival  at 
$6  per  hundred.  It  was  held  that  the  measure  of  plaintiffs'  damages 
was  the  difference  between  the  amount  the  sheep  were  sold  for  and 
their  actual  value. 

In  Doughtery  v.  Telegraph  Co.^*  it  was  held  that,  for  failure  to 
deliver  a  message  directing  the  sale  of  cotton  owned  by  the  sender, 
he  may  recover  the  actual  damages  sustained  by  a  fall  in  the  price 
of  the  cotton  between  the  time  it  would  have  been  sold  if  the  mes- 
sage had  been  delivered  and  the  time  it  was  actually  sold,  reason- 
able diligence  having  been  used  to  make  the  sale. 

In  W.  U.  Tel.  Co.  v.  Williford  ^^  it  was  held  that  the  measure  of 
damages  for  failure  to  deliver  a  telegram  to  the  owner  of  cattle  from 
his  agent,  whereby  an  opportunity  to  sell  the  cattle  was  lost,  is  the 
difference  between  their  market  value  at  the  place  where  they  were 
at  the  time  and  the  price  for  which  they  could  have  been  sold. 

In  W.  U.  Tel.  Co.  v.  Linney  ^®  it  was  held  that  a  telegraph  com- 
pany is  liable  to  the  addressee  of  a  telegram,  on  failure  to  deliver 
within  a  reasonable  time  a  telegram  notifying  him  not  to  ship  cat- 
tle to  a  certain  market,  for  loss  caused  by  a  shipment  to  such  mar- 
ket. 

In  W.  U.  Tel.  Co.  v.  Collins  ^'  it  was  held  that  where  a  telegraph 
company  neglects  to  deliver  a  message  to  a  live-stock  shipper  as  to 
the  state  of  the  market  at  a  certain  point,  in  consequence  of  which. 

13  12  Atl.  (Pa.  Sup.)  4G7.  115  27  S.  W.  700  (Tox.  Civ.  App.). 

1*75  Ala.   1G8.  le  28  S.  W.  234  (Tex.  Civ.  App.). 

17  45  Kan.  88,  25  I'ac.  187. 


270  DAMAGKS    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.        (Ch.    11 

neglect  the  shipper  sends  his  stock  to  the  next  nearest  market,  at 
which  he  receives  10  ccnis  per  100  less  than  the  market  price  for 
the  same  stock  at  the  first  point  on  the  same  day,  the  shipper  is  en- 
titled to  recover  from  the  telegraph  company  the  difference  between 
the  market  prices  of  the  two  points,  with  the  difference  in  freight 
added. 

In  W.  U.  Tel.  Co.  v.  Stevens  ^*  it  was  held  that  where  a  telegraph 
company,  by  negligently  failing  to  deliver  a  telegram,  causes  the 
sender's  cattle  to  be  shipped  to  a  point  where  they  have  to  be  sold 
at  less  than  the  market  price  at  the  place  whence  they  were  shipped, 
the  measure  of  damages  is  the  difference  between  such  market  price 
and  the  amount  for  which  they  were  sold.  It  was  further  held  that 
the  fact  that  the  sender  might  have  purchased  other  cattle  of  the 
same  grade,  for  a  less  sum  than  he  received  for  his,  does  not  affect 
the  question  of  damages,  since  it  does  not  devolve  on  him  to  replace 
the  cattle  lost  through  the  company's  negligence. 

In  Hollis  V.  Telegraph  Co.^®  it  was  held  that  the  measure  of  dam- 
ages which  may  be  recovered  from  a  telegraph  company  for  deviat- 
ing from  the  terms  of  a  message  correctly  reporting  the  state  of  the 
market  for  a  particular  article,  whereby  the  receiver  of  the  mes- 
sage is  induced  to  send  the  article  forward  for  sale,  is  the  difference 
between  the  actual  state  of  the  market  and  the  terms  of  the  mes- 
sage, as  erroneously  transmitted,  overstating  it,  provided  the  ac- 
tual loss  amounts  to  that  much. 

In  W.  U.  Tel.  Co.  v.  James  ^°  it  was  held  that  where  the  injury 
done  one  to  whom  a  telegram  was  sent,  by  failure  to  deliver  it,  was 
the  prevention  of  a  sale  that  would  otherwise  have  been  consum- 
mated, the  measure  of  damages  is  the  price  which  would  have  been 
realized  by  the  sale  less  the  market  value  of  the  goods  on  that  day, 
or,  if  they  had  no  market  value,  the  contract  price  less  the  price 
that  could  have  been  obtained  afterwards. 

In  Garrett  v.  Telegraph  Co.-^  it  appeared  that  plaintiff  had  an 
arrangement  with  a  Chicago  firm  to  inform  him  by  wire  of  any 
change  in  the  cattle  market.  He  delivered  a  message  to  them  to 
defendant's  agent,  stating  where  he  could  be  reached  by  wire,  which 

18  16  S.  W.  1095  (Tex.  Sup.).        2090  Ga.  254.  16  S.  E.  S3. 

19  91  Ga.  801,  18  S.  E.  287.  21  58  N.  W.  1064  (Iowa). 


^    119)  PROXIMATE    AND    CERTAIN    DAMAGES.  271 

was  not  sent.  Relying  upon  the  silence  of  his  correspondent,  plain- 
tiff purchased  cattle  for  the  Chicago  market  on  the  basis  of  the  price 
last  named  by  it,  which  had  fallen.  It  was  held  that  the  measure 
of  damages  was  the  difference  between  the  Chicago  price  at  the 
time  he  bought  the  cattle  and  what  it  was  when  last  informed  by 
his  correspondent. 

In  W.  U.  Tel.  Co.  v.  Haman  ^^  it  appeared  that  a  member  of  the 
plaintiff  firm,  after  receiving  instructions  by  telegraph,  had  pur- 
chased a  quantity  of  wool,  and  delivered  to  the  defendant  telegraph 
company  a  message  advising  the  firm  thereof,  telling  the  agent  that 
the  message  was  important,  and  that  he  thought  his  firm  had  prob- 
ably contracted  to  sell  the  wool ;  and,  to  avoid  any  mistake,  he  had 
the  agent  transcribe  the  message,  and  signed  the  copy.  The  mes- 
sage was  not  delivered,  and  the  price  of  wool  when  the  firm  first 
learned  of  the  purchase  had  declined  from  the  price  at  which  they 
could  have  sold  it  if  they  had  gotten  the  message.  They  sought  to 
recover  the  difference  as  their  damages,  and  it  was  held  that  they 
could  do  so. 

In  W.  U.  Tel.  Co.  v.  Brown  ^^  plaintiff  had  contracted  to  sell 
in  C.  certain  mules,  for  the  purchase  of  which  his  agent  had  been 
sent  to  K.;  but,  owing  to  the  failure  of  plaintiff  to  get  a  mes- 
sage in  due  season,  his  customer  rescinded  the  contract.  It  was  held 
that  the  measure  of  damages  for  failure  to  make  this  sale  was  not 
the  difference  between  the  price  at  which  they  could  have  been 
bought  in  K.  if  the  message  had  been  delivered  in  due  time,  and  the 
price  at  which  he  had  contracted  to  sell  them,  but  that  difference 
less  the  expense  of  transportation  to  C. 

In  W.  U.  Tel.  Co.  v.  Hyer  ^*  ship  brokers  in  Pensacola,  who  had 
been  engaged  by  customers  to  charter  a  vessel,  sent  a  telegram  to 
their  correspondent  in  Barbadoes,  making  an  offer  for  the  charter 
of  a  vessel.  The  offer  was  accepted,  and  a  message  to  that  effect 
sent  to  the  brokers,  but  the  message  was  not  delivered  to  them  by 
the  telegraph  company.  Their  correspondent  in  Barbadoes,  as  their 
agent,  signed  a  charter  party.  Not  receiving  the  answer  to  their 
message,  they  told  their  customer  that  they  had  failed  to  charter  the 

2  2  2  Tex.  Civ.  A  pp.  100,  20  S.  W.  1133.  2  8  84  Tex.  54,  19  S.  W.  33G. 

«*  22  Fla.  G37,  1  South.  120. 


272  DAMAGES    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.        (Ch.    11 

vessel,  whereupon  he  chartered  another.  Two  weeks  later  the  vessel 
chartered  by  their  agent  came  to  Pensacola,  and  they  were  obliged 
to  recharter  it  at  a  loss.  The  telegraph  company  was  held  liable 
for  such  loss,  and  for  the  plaintiffs  time  and  exertions  in  recharter- 
ing  the  vessel. 

In  Parks  v.  Telegraph  Co.^'^  it  was  held  that  for  failure  to  deliver 
a  message  authorizing  the  sender's  agent  to  secure  a  debt  due  him 
from  a  third  person  by  attachment,  by  reason  of  which  other  cred- 
itors secured  attachments,  and  the  sender  lost  his  debt,  the  sender 
could  recover  from  the  company  the  amount  of  the  debt.^" 

In  Herron  v.  Telegraph  Co.^^  where  plaintiff's  sale  of  his  horse 
had  failed  because  of  delay  in  delivering  a  telegram,  and  the  horse 
had  no  regular  market  value  in  the  neighborhood,  and  plaintiff  had 
since  disposed  of  him  for  the  best  price  by  reasonable  effort  attain- 
able, it  was  held  that  the  plaintiff  could  recover  the  difference  be- 
tween the  dispatch's  offer  and  the  price  realized,  with  cost  of  keep 
and  interest. 

In  Pruett  v.  Telegraph  Co.^^  the  plaintiff's  agent  had  telegraphed 
him  that  a  herd  of  cattle  which  plaintiff  was  holding  together  for 
sale  had  been  sold  by  the  agent,  and  informed  the  telegraph  agent 
that,  unless  the  message  was  delivered  that  day,  the  plaintiff  would 
turn  the  herd  loose.  The  telegraph  company  failed  to  deliver  the 
telegram  that  day,  and  the  herd  was  therefore  turned  loose.  It  was 
held  that  the  company  was  liable  for  the  cost  of  regathering  the 
cattle,  and  the  death  and  depreciation  in  value  of  the  cattle  caused 
by  such  regathering. 

In  W.  U.  Tel.  Co.  v.  Bates  ^°  it  was  held  that  where  plaintiff, 
through  delay  in  receiving  a  telegram,  made  a  journey  which  he 
would  not  have  made  until  later  if  it  had  been  received,  he  was  en- 
titled to  recover  the  increased  expenses  of  the  premature  journey. 
He  could  not  recover  more  than  this  loss.*" 

2  5  13  Cal.  422. 

2  6  To  the  same  effect,  see  Fleischner  v.  Cable  Co.,  55  Fed.  738,  and  W.  U. 
Tel.  Co.  V.  Sheffield,  71  Tex.  .570,  10  S.  W.  752. 
2T  57  N.  W.  696  (Iowa). 
28  6  Tex.  Civ.  App.  533,  25  S.  W.  794. 
28  93  Ga.  352,  20  S.  E.  639. 
»o  See  Sprague  v.  Telegraph  Co.,  6  Daly,  200,  affirmed  in  67  N.  T.  590. 


§    119)  PROXIMATE    AND    CERTAIN   DAMAGES.  273 

In  W.  U.  Tel.  Co.  v.  Proctor  ^^  it  was  held  that,  where  a  telegram 
sent  b}'  a  father  to  prevent  the  marriage  of  a  minor  daughter  was 
not  promptly  delivered,  by  reason  of  which  the  marriage  was  per- 
formed, he  may  recover  for  loss  of  service  until  she  reaches  the  age 
of  18  years. 

In  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Loonie^^  where  it  appeared  that 
plaintiff,  who  was  constructing  a  building,  went  to  C.  for  materials, 
leaving  the  plans  with  his  workmen ;  that  afterwards  he  telegraphed 
that  the  plans  be  sent  to  C,  but  the  message  was  not  delivered; 
that  while  at  C.  he  agreed  on  the  materials  and  prices,  but  could  not 
conclude  contracts  for  the  materials,  in  the  absence  of  the  plans; 
that  afterwards  the  price  of  the  material  advanced, — it  was  held 
that  an  instruction  that  plaintiff's  measure  of  damage  was  "the 
amount  he  paid  for  the  message,  the  value  of  plaintiff's  time  lost, 
and  the  difference  he  had  to  pay  by  reason  of  the  advance  in  the 
price  of  material,"  was  properly  given. 

In  W.  U.  Tel.  Co.  v.  Jobe  ^^  it  was  held  that  where  a  telegraph 
company  failed  to  deliver  a  message  to  plaintiff,  announcing  the 
illness  of  his  wife's  father,  till  14  hours  after  receipt,  plaintiff  can 
recover  the  cost  of  a  second  message  sent  him  in  relation  thereto, 
and  paid  for  by  him. 

In  Rich  Grain  Distilling  Co.  v.  W.  IT.  Tel.  Co.^*  it  was  held  that 
where  a  telegram  requesting  boiler  makers  to  send  a  man  to  repair 
a  boiler  in  a  distillery  is  not  delivered,  damages  are  recoverable  for 
money  expended  in  paying  idle  servants.' ° 

Same — Hlmtrations — Gains  Prevented . 

The  following  cases  show  the  application  of  the  rule  to  cases  in 
which  gains  or  profits  are  prevented.     The  rule,  of  course,  is  subject 

«i  25  S.  W.  811  (Tex.  Civ.  App.). 

82  82  Tex.  323,  18  S.  W.  221. 

8  3  2.J  S.  W.  IGS  (Tex.  Civ.  App.). 

8*  13  Ky.  Law  Rep.  23G  (Ky.  Super.  Ct.). 

8  0  See,  also,  Tyler  v.  Telegraph  Co.,  GO  111.  421;  W.  U.  Tel.  Co.  v.  Du  Bois, 
128  111.  248,  21  N.  E.  4;  W.  U.  Tel.  Co.  v.  Hobson,  15  Grat.  (Va.)  122;  Iladley 
v.  Telegraph  Co.,  115  Ind.  101,  15  N.  E.  815;  Manville  v.  Telegraph  Co.,  37 
Iowa,  214;  Turner  v.  Telegraph  Co.,  41  Iowa,  458;  Leonard  v.  Telegraph  Co. 
41  X.  Y.  .'14. 

LAW  1JA.M.  — 18 


274  DAMAGES    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.        (Ch.    11 

to  the  qualification  that  the  profits  or  gain  must  not  be  speculative. 
This  qualification  will  be  preseutly  illustrated. 

In  Alexander  v.  Telegraph  Co.^®  it  was  held  that,  where  the  sender 
of  a  telegram  loses  a  purchase  of  land  by  reason  of  the  company's 
failure  to  deliver  the  telegram,  he  may  recover  the  difference  be- 
tween the  price  at  which  the  property  was  offered  to  him  and  its 
actual  market  value  at  the  time  tiie  message  should  have  been  de- 
livered. 

In  Kittenhouse  v.  Telegraph  Co.^'^  the  operator  made  a  mistake  in 
the  article  ordered  by  telegraph.  It  was  held  that  the  company 
must  make  good  the  difference  between  the  price  of  the  article  ac- 
tually ordered  at  the  time  the  dispatch  should  have  been  deliv- 
ered, and  the  price  of  the  same  article  if  it  had  been  purchased  as 
soon  as  the  mistake  was  discovered. 

In  United  States  Tel.  Co.  v.  Wenger  ^*  there  was  a  failure  by  the 
telegraph  company  to  deliver  a  message  to  buy  certain  stock  which 
advanced  in  price  between  the  time  when  the  message  should  have 
been  delivered  and  the  time  it  was  purchased  under  another  order. 
It  was  held  that  the  company  was  liable  for  the  amount  of  the  ad- 
vance in  the  price  of  the  stock  between  those  dates. ^' 

In  True  v.  Telegraph  Co.*"  the  plaintiffs,  having  received  an  offer 
of  a  cargo  of  corn  at  90  cents  per  bushel,  had  delivered  to  the  tele- 
graph company, to  be  sent  to  the  personmaking  the  offer, the  follow- 
ing message:  "Ship  cargo  named  at  ninety,  if  you  can  secure  freight 
at  ten."  The  message  was  not  delivered  by  the  company,  and  by  rea- 
son thereof  the  plaintiffs  failed  to  obtain  the  corn  on  the  terms  of- 
fered, and  the  i)rice  of  corn  and  freight  immediately  advanced,  and 
the  plaintiffs  lost  the  profits  that  they  might  have  made  thereon. 
The  court  held  that  the  measure  of  damages  was  the  difference  be- 
tween the  price  named  in  the  offer  and  that  which  plaintiffs  would 
have  been  obliged  to  pay  at  the  same  place,  in  order,  by  due  dili- 
gence, after  notice  of  failure  to  deliver  their  telegram,  to  purchase 

ae  GG  Miss.  IGl,  5  South.  397, 

87  44  N.  Y.  263. 

3  8  55  Pa.  St.  2G2. 

39  And  see  Pearsall  v.  Telegraph  Co.,  124  N.  Y.  2.1C.,  2G  N.  E.  .">.34. 

*o  GO  Me.  9. 


§    119;  PROXIMATE    AND    CERTAIN    DAMAGES.  275 

the  like  quantity  and  quality  of  corn,  with  the  same  rule  in  relation 
to  the  freight. 

In  Carver  v.  Telegraph  Co.*^  it  was  held  that  where  a  telegraph 
company,  with  notice  of  the  importance  of  a  message  directing  the 
purchase  of  cattle,  fails  to  deliver  it,  and  there  is  a  subsequent  per- 
manent advance  in  the  price  of  cattle,  the  company  will  be  liable  to 
the  sender  for  the  loss  sustained  by  purchase  of  cattle  at  the  ad- 
vanced price. 

In  Pearsall  v.  Telegraph  Co.*-  it  was  held  that  the  proper  meas- 
ure of  damages  for  failure  to  deliver  a  telegraphic  message  contain- 
ing on  its  face  an  instruction  to  buy  a  certain  stock,  that  in  con- 
sequence was  not  bought  until  24  hours  later,  was  the  difference 
between  the  market  value  of  the  stock  when  the  message  ought  to 
have  been  delivered  and  on  the  day  after. 

In  W.  U.  Tel.  Co.  v.  Fatman  *^  a  ship  broker  desired  to  furnish  a 
vessel  for  the  use  of  another  person,  and,  if  he  had  done  so,  he  would 
have  been  entitled  to  certain  commissions  for  his  services.  He  dis- 
patched to  Liverpool  for  a  vessel,  and  a  message  requiring  imme- 
diate reply,  and  offering  a  suitable  vessel,  was  delivered  to  a  tele- 
graph company,  to  be  communicated  to  the  broker ;  but  the  company 
failed  to  deliver  it  within  a  reasonable  time,  and  on  that  account 
the  vessel  was  not  obtained.  The  broker  sued  the  company,  and  re- 
covered judgment  for  the  amount  of  the  commissions  he  would  have 
earned  if  he  had  secured  the  vessel,  and  the  judgment  was  affirmed. 

In  W.  U.  Tel.  Co.  v.  Valentine  **  it  was  held  that  where,  by  the 
negligence  of  a  telegraph  company,  a  person  fails  to  obtain  a  salaried 
position,  the  measure  of  damages  is  the  difference  between  the 
amount  of  such  salary'  and  the  amount  actually  earned  by  him. 

In  W.  U.  Tel.  Co.  v.  Bowen  *^  it  appeared  that  plaintiffs  were 
threshers,  and  their  agent  at  V.  wired  them:  "Have  30,000  bushels 
for  you,  if  you  can  come  at  once."  Plaintiffs  answered :  "Will  ship 
machinery  at  once."  The  latter  message  was  not  delivered,  and 
some  of  the  parties  for  whom  threshing  was  to  be  done,  not  knowing 

4131  S.  W.  432  (Tex.  Civ.  App.). 

42  124  N.  Y.  25G.  2G  N.  E.  534  (affirming  44  Hun,  532). 

4  8  73  Ga.  285. 

44  18  111.  App.  57. 

4  0  84  Tex.  47G.   19  S.  W.  554. 


276  DAMAGKS    IX    ACTIONS    AGAINST   TEF-EGRAPII    COMPANIES.        (Cll.    11 

that  the  offer  was  accepted,  made  other  contracts.  It  was  held  that 
defendant  was  liable  for  the  loss  of  the  contracts,  though  there  was- 
no  delay  in  getting  the  machine  to  V. 

In  W.  U.  Tel.  Co.  v.  Robinson  *^  which  was  an  action  against  a 
telegraph  company  to  recover  for  negligence  in  the  transmission  of 
a  message,  it  appeared  that  plaintiffs  held  certain  contracts  for 
threshing  grain,  which  they  lost  thereby.  It  was  held  that  the 
measure  of  their  damages  was  the  difference  between  the  amount 
they  would  have  received  under  the  contracts  and  the  expense  they 
would  have  incurred  in  fulfilling  them. 

In  W.  U.  Tel.  Co.  v.  Longwill  *''  a  telegram  had  been  sent  to  a 
physician  summoning  him,  but  through  the  negligence  of  the  com- 
pany it  was  not  delivered  to  him  until  it  was  too  late  to  make  the 
visit,  and  until  after  the  order  had  been  countermanded.  There  was 
testimony  that  a  reasonable  compensation  for  the  services  expected 
to  be  performed  by  the  physician  would  have  been  $500,  and  the 
sender  of  the  message  was  solvent.  It  was  held  that  the  difference 
between  such  sum  and  what  he  earned  during  the  time  that  he  would 
have  been  absent  on  such  visit  was  the  measure  of  damages. 

Same — Loss  of  Unlawful  Contract  or  Gain. 

Even  if  a  telegraph  company  is  negligent  in  failing  to  send  or 
deliver  a  message,  the  sender  cannot  recover  for  gains  prevented 
thereby,  if  they  would  have  been  unlawful.  The  law  clearly  can- 
not take  such  matters  into  consideration  in  compensating  him.  He 
could  not  recover,  for  instance,  damages  for  being  prevented  from 
entering  into  or  carrying  out  an  unlawful  contract.  Thus,  in  a 
Georgia  case  it  was  held  that  since  contracts  for  fictitious  or  option 
"futures"  are  illegal,  whether  between  principal  and  principal,  or 
broker  and  principal,  where  both  parties  are  in  complicity  touching 
the  unlawful  purpose,  such  contracts,  or  the  loss  or  gain  resulting 
from  them,  cannot  be  invoked  to  measure  the  damages  sustained  by 
the  sender  of  a  telegram  in  consequence  of  a  mistake  made  by  the- 
company  in  transmitting  the  message.*^ 

*8  29  S.  W.  71  (Tex.  Civ.  App.). 

*^  21  Pac.  339  (X.  M.). 

4  8  Cotbran  v.  Telegraph  Co.,  S3  Ga.  2.j,  9  S.  E.  S36.  See,  also,  Melchert  v.. 
Telegraph  Co.,  11  Fed.  193;  Freeman  v.  Telegraph  Co.,  93  Ga.  230,  18  S.  E- 
647  (referred  to  infra). 


§    120;  REMOTE    AND    SPECULATIVE    DAMAGES.  277 


SAME— REMOTE  AND  SPECULATIVE  DAMAGES. 

120.  Damages    cannot   be  recovered   for  losses  -which  are 
remote  or  speculative. 

This  rule  is  but  the  converse  of  the  general  rule  that  losses  must 
t>e  proximate  and  certain  in  order  to  be  compensated.  To  entitle 
the  plaintiff  to  recover  more  than  nominal  damages,  it  is  incumbent 
4ipon  him  to  prove  actual  and  certain  damage,  and  to  show,  further 
than  this,  that  it  was  the  natural  result  of  the  breach  of  its  con- 
tract by  the  telegraph  company,  or  was  in  the  contemplation  of  both 
parties,  when  they  made  the  contract,  as  a  probable  consequence  of 
a  breach  of  it.  This  qualification  is  laid  down  in  Hadley  v.  Baxen- 
dale  and  GriflSn  v.  Colver,^"  and  is  sufficiently  illustrated  by  the  fol- 
lowing cases: 

In  W.  U.  Tel.  Co.  v.  Cooper  "  it  was  held  that  failure  to  de- 
liver a  message  to  a  physician,  calling  him  to  attend  a  patient, 
does  not  render  the  company  liable  for  the  patient's  suffering, 
if  the  message  could  not  have  been  delivered  in  time  for  him  to 
have  rendered  any  assistance.  Of  course,  in  such  a  case  the  com- 
pany would  be  liable  for  nominal  damages  for  its  breach  of  contract, 
-and  for  the  price  paid  it  for  transmission  of  the  message." 

In  W.  U.  Tel.  Co.  v.  Kendzora  ^^  which  was  an  action  for  failure 
to  deliver  a  message  summoning  a  physician  to  attend  plaintiff's 
wife,  who  died  two  days  later,  it  was  held  that  plaintiff  could  not 
recover  for  loss  of  his  wife's  services,  where  there  was  no  evidence 
that  her  life  could  have  been  saved  had  the  message  been  promptly 
<lelivered. 

In  Beasley  v.  Telegraph  Co.^*  the  plaintiff,  to  whom  a  message 
had  been  sent  announcing  the  illness  of  his  wife,  sued  the  telegraph 
•company  for  failure  to  deliver  the  message.  It  was  held  that  he 
■could  not  recover  if,  had  the  message  been  delivered  in  a  reasonable 
time,  he  could  not  have  reached  his  wife  before  her  death. 

60  IG  N.  Y.  4S9. 

M  71  Tox.  .jOT,  '.)  S.  W.  r>!)8. 

f  2  And  see  Cults  v.  Telegraph  Co.,  71  Wis.  4(5.  30  N.  W.  027. 

6  3  77  Tex.  2.-,7.  13  S.  W.  OSG. 

««  3!)  Fed.   LSI. 


278  DAMAGKS    I\    ACTIONS    ACiAINST    TEI.EGRAPH    COMPANIES.        (Cll.    il 

In  W.  IT.  Tel.  Co.  v.  Smith  ^'  it  was  held  that  one  suing  a  tele- 
graph company  for  delay  in  delivering  a  message,  whereby  he  wa» 
deprived  of  seeing  his  father  alive,  must  show  that  the  distance  be- 
vweeu  him  and  his  father,  the  means  of  travel,  and  the  time  required 
to  make  the  trip,  were  such  that  he  could  have  reached  his  father 
before  the  latter's  death  had  the  message  been  properly  delivered. 

In  W.  U.  Tel.  Co.  v.  Parks  ^^  it  was  held  that  delay  in  transmitting 
messages  to  and  from  a  consulting  physician,  who  in  fact  could  not 
come,  is  no  ground  for  damages  beyond  the  cost  of  the  dispatches, 
where  it  does  not  appear  but  that  the  attending  physician  did  all 
that  could  be  done,  and  that  plaintiff  suffered  nothing  from  the  de- 
lay but  suspense  of  mind. 

In  Freeman  v.  Telegraph  Co."  it  was  held  that  there  could  be  no 
recovery  for  failure  to  deliver  a  message  offering  employment  when 
the  addressee  was  already  under  contract  with  another,  consistently 
with  which  he  could  not  have  entered  the  employment  of  the  sender. 

In  Hughes  v.  Telegraph  Co.^*  it  was  held  that,  where  the  incor- 
rect transmission  of  a  telegram  caused  plaintiff  to  sell  shares  of 
stock  for  which  he  received  the  market  value,  his  damages  were 
limited  to  the  cost  of  the  message,  though  a  few^  days  later  he  was 
compelled,  in  order  to  buy  shares  of  the  same  stock,  to  pay  an  ad- 
vanced price. 

In  W.  U.  Tel.  Co.  v.  Fellner  ^^  which  was  an  action  against  a 
telegraph  company  for  failure  to  deliver  a  message  instructing  the 
addressee  to  purchase  for  plaintiff  100  shares  of  certain  stock,  it  w'as 
held  that  the  mere  fact  that,  within  a  few^  days  after  the  message 
was  sent,  the  price  of  such  stock  advanced  |.550,  and  so  continued 
until  suit  w'as  brought,  did  not  entitle  plaintiff  to  recover  more  than 
nominal  damages,  there  being  no  evidence  that,  if  the  stock  had  been 
jturchased,  plaintiff  would  have  ever  sold  it  at  a  profit. 

In  Cahn  v.  Telegraph  Co.®°  the  plaintiff  had  sent  a  telegram  to  hi& 
brokers  directing  the  latter  to  sell  certain  stock.     The  message  wa& 
not  delivered  for  several  days,  during  which  the  price  of  the  stock 
fell  from  $73  to  $55  per  share.     The  plaintiff  in  fact  owned  no  stock. 
It  was  held  that  the  company  was  not  liable  for  the  difference  be- 
es 30  S.  W.  549  (Tex.  Sup.).  r.8  114  N.  C.  70,  19  S.  E.  100. 
G6  25  S.  TV.  S13  (Tex.  Civ.  App.).  '-^  58  Ark.  20,  22  S.  W.  917. 
67  93  Ga.  230,  IS  S.  E.  647.                          go  4G  Fed.  40 


§    i-O)  REJVIOTE    AND    SPECULATIVE    DAMAGES.  279 

tween  the  price  of  the  stock  when  the  telegram  should  have  been 
delivered  and  the  price  to  which  it  declined,  because,  ''the  plaintiff 
not  having  the  stock  in  the  hands  of  his  brokers,  and  his  telegram 
being  an  order  to  sell  something  he  did  not  own,  and  it  being  ad- 
mitted that  if  the  telegram  had  been  delivered  in  time  the  brokers 
would  have  sold,  still  there  could  have  been  no  actual  loss  to  plain- 
tiff. The  brokers  would  necessarily  have  gone  into  the  market,  and 
purchased  at  the  market  price, — viz.  |73, — or  used  their  own  stock 
or  the  stock  of  others,  which  is  the  same  thing  and  of  the  same  value; 
hence  it  would  have  been  a  purchase  and  a  sale  of  the  stock  on  the 
same  day  and  at  the  same  price,  and  there  could  be  no  loss  or  dam- 
age predicated  on  this  transaction."  Plaintiff  in  this  case  could  re- 
cover nominal  damages  and  the  cost  of  the  message  paid  by  him.*'^ 

In  W.  U.  Tel.  Co.  v.  Hall  ®^  the  plaintiff  brought  suit  against  a 
telegraph  company  for  delaying  the  delivery  of  a  message  directing 
the  addressee  to  buy  for  plaintiff  10,000  barrels  of  petroleum,  the 
market  price  of  which  when  the  message  ought  to  have  been  deliv- 
ered was  |1.17  per  barrel,  but  when  received  by  the  addressee  had 
advanced  to  |1.35  per  barrel.  The  addressee  did  not  purchase.  It 
was  held  that  plaintiff,  having  suffered  no  actual  loss,  could  only 
recover  nominal  damages,  and  not  the  contingent  profit  he  might 
have  made  by  buying  at  the  one  price  and  selling  at  the  other.  In 
this  case  the  authorities  are  collated.*^ 

In  W.  U.  Tel.  Co.  v.  Cooper  ^*  which  was  an  action  against  a  tele- 
graph company  for  failing  to  deliver  a  message  sent  to  plaintiff's 
family  physician,  calling  him  to  attend  plaintiff's  wife  in  her  con- 
finement, it  was  held  that  there  could  be  a  recovery  for  the  wife's 
increased  suffering  caused  by  her  labor  being  prolonged,  but  not  for 
the  death  of  the  child  and  consequent  bereavement  of  the  parents, 
as  the  latter  damages  were  too  remote,  being  the  result  of  a  second- 
ary cause.  It  was  further  held  that  the  plaintiff  could  not  recover 
for  his  own  mental  suffeiing  caused  by  alarm  and  sympathy  for  his 
wife's  suffering,  as  it  was  too  remote. 

61  Affirmed  in  2  U.  S.  App.  "Jl,  1  C.  C.  A.  107,  and  48  Fod.  810. 
6  2  124  U.  S.  444,  8  Sup.  Ct.  7)17. 

63  St-e,  also,  Cannon  v.  Telegraph  Co.,  100  N.  C.  oOO,  0  S.  E.  731. 
•*  71  Tex.  507,  9  ii.  W.  508. 


280  DAMAGKS    IN    ACTIONS    AGAINST    TEt-KCJUATH    COMPANIES.        (Cll.    11 

In  Rich  Grain  Distilling  Co.  v.  W.  U.  Tel.  Co.°=*  it  was  liekl  that, 
where  a  telegram  requesting  boiler  makers  to  send  a  man  to  repair 
a  boiler  in  a  distillery  is  not  delivered,  damages  cannot  be  recovered 
for  probable  profits  on  liquors  that  could  have  been  made  had  no 
delay  occurred  by  reason  of  such  nondelivery. 

In  Duncan  v.  Telegraph  Co.®"  it  was  held  that  a  mistake  in  the 
transmission  of  a  telegram,  requesting  the  services  of  a  veterinary 
surgeon,  cannot  be  deemed  the  proximate  cause  of  the  death  of  a 
horse  belonging  to  the  sender  of  the  telegram,  where  the  evidence  is 
merely  conjectural  as  to  whether  the  life  of  the  horse  might  have 
been  saved  had  a  veterinary  come  at  once,  pursuant  to  a  correct 
transmission. 

In  Smith  v.  Telegraph  Co.°^  the  plaintiff  had  deposited  money 
with  defendant  telegraph  company,  to  be  transmitted  to  a  bank  for 
the  payment  of  plaintiff's  note  due  on  that  day,  but,  because  of  de- 
fendant's failure  to  notify  the  bank  until  the  day  following,  the  note 
went  to  protest.  It  was  held  that,  in  the  absence  of  pecuniary  loss 
resulting  from  defendant's  failure,  plaintiff  could  not  recover  for 
damages  to  his  credit. 

In  Kenyon  v.  Telegraph  Co.,®^  an  action  against  a  telegraph  com- 
pany for  failure  to  deliver  a  message,  by  reason  of  which  plaintiff 
failed  to  receive  an  appointment  as  deputy  assessor,  it  was  held  that 
damages  for  loss  of  the  salary  he  would  have  received  are  too  spec- 
ulative, since  a  deputy  only  holds  office  at  the  pleasure  of  the  officer 
appointing  him.®^ 

In  Walser  v.  Telegraph  Co.'''*  a  telegraph  company  failed  to  de- 
liver the  following  telegram,  sent  by  the  comptroller  of  the  currency: 
"Would  you  accept  receivership  First  National  Bank  Wilmington? 
*  *  *  Compensation,  fjf2()0  per  month,  subject  to  future  modifica- 
tion." It  was  held  that,  where  the  pleadings  raised  no  question  as 
to  exemplary  damages,  plaintiff  could  recover  only  nominal  damages, 
since,  if  he  had  received  the  message  and  had  sent  an  affirmative 

6  5  13  Ky.  Law  Rep.  27jC,  (Ky.  Super.  Ct.). 
Gc  87  Wis.  173,  58  N.  W.  75. 
0  7  150  Pa.  St.  561.  24  Atl.  1049. 

6  8  100  Cal.  454,  35  Pac.  75. 

69  And  see  Merrill  v.  Telegraph  Co.,  78  Me.  97,  2  Atl.  847. 

7  0  114  N.  C.  440,  19  S.  E.  3l3G. 


■§    120)  REMOTE    AND    SPECULATIVE    DAMAGES.  281 

reply,  the  government  would  have  been  under  no  obligation  to  con- 
fer the  o£Sce  on  plaintiff. 

In  W.  U.  Tel.  Co.  v.  Bowen/^  an  action  against  a  telegraph  com- 
pany for  failure  to  deliver  a  message,  whereby  plaintiff  lost  a  con- 
tract for  threshing  certain  grain,  where  the  complaint  showed  the 
amount  of  grain  to  be  threshed,  and  the  rate  of  toll  per  bushel  con- 
tracted for,  it  was  held  that  the  damages  were  not  contingent  or 
uncertain. 

In  W.  U.  Tel.  Co.  v.  Clifton  "-  it  was  held  that  the  delay  of  a  tele- 
graph company  in  delivering  a  telegram  to  an  attorney,  requesting 
him  to  take  the  first  train  for  a  neighboring  town,  but  which  tele- 
gram contained  nothing  to  show  why  he  was  wanted  at  that  place, 
or  what  injuries  would  result  to  him  from  the  delay  in  delivery, 
does  not  enable  him  to  recover  the  attorney's  fees  which  he  might 
have  earned  had  the  dispatch  been  seasonably  delivered,  as  such 
rule  of  damages  would  cover  all  possible  and  improbable  consequen- 
-ces  arising  from  the  delay  in  delivering,  instead  of  the  probable  con- 
sequences only. 

In  Chapman  v.  Telegraph  Co.''^  it  was  held  that  the  loss  of  a  note 
which  plaintiff  avers  his  father  would  have  given  him  had  he  been 
^ble  to  see  him  before  his  death  is  a  consequence  too  remote  to  sus- 
tain a  claim  for  damages  for  failure  to  deliver  a  telegram  announ- 
•cing  the  illness  of  the  father. 

In  Alexander  v.  Telegraph  Co."^*  it  was  held  that  where,  by  fail- 
ure of  a  telegraph  company  to  deliver  a  message,  plaintiff  lost  the 
•opportunity  to  buy  for  |3,000  land  worth  $5,000,  and  sought  to  re- 
-cover  the  difference,  the  damages  claimed  are  not  so  speculative,  re- 
mote, or  contingent  as  to  absolve  the  company  from  liability. 

In  McAlleu  v.  Telegraph  Co.'^'*  it  was  held  that  damages  for  bruises 
received  in  consequence  of  being  obliged  to  take  a  rough  vehicle, 
instead  of  tlie  family  carriage,  are  too  remote  for  a  claim  against  a 
telegraph  company  for  failure  to  transmit  a  message  ordering  the 
family  carriage. 

In  Frazer  v.  Telegraph  Co.,^°  which  was  an  action  for  negligence 
in  transmitting  to  plaintiffs  a  telegram  aiiiiounciug  a  rise  in  the 

71  84  Tox.  470,  lit  S.  W.  ">L  7-»  (Ji;  .Miss.  101.  ."j  Soiilli.  :!;)7. 

T2  08  Miss.  307,  8  South.  74f).  to  70  Tex.  2U.  7  S.  W.  71."). 

73  90  Ky.  2G5.  1.3  S.  W.  8S0.  fost  Al:i.    1,S7,  4   .Soiilli.  s:;i. 


282  DAM.UiE.S    IN     ACridNS     AiiAIXST    TELEGRAPH    COMPANIES.        (Cll.    11 

price  of  cotton,  whereby  plaintitTs  sold  their  cotton  for  less  than 
they  could  have  obtained,  it  appeared  that  the  sender  was  under 
no  legal  obligation  to  inform  plaintiffs  as  to  the  price  of  cotton, 
and  that  plaintiffs  did  not  rely  on  receiving  information  from  him. 
It  was  held  that  the  damages  claimed  were  too  remote. 

In  W.  U.  Tel.  Co.  v.  Crall  '^  it  was  held  that  damages  cannot  be 
recovered  for  inaccurate  transmission  on  account  of  the  loss  of  antic- 
ipated gains  or  profits,  based  on  the  probability  of  plaintiff's  horse 
being  able  to  win  prize  purses  at  a  trotting  race,  as  such  damages 
are  too  remote,  contingent,  and  speculative. 

SAME— DAMAGES    NOT  WITHIN  CONTEMPLATION  OF  PAR-^ 

TIES— NOTICE  OF  PURPOSE  AND  IMPORTANCE 

OF  MESSAGE. 

121.  Consequential  damages,  arising  out  of  circumstances 
not  contemplated  by  both  parties,  cannot  be  recov- 
ered; but,  if  enough  appears  in  the  message  to  show 
that  it  relates  to  a  commercial  business  transac- 
tion, it  is  sufiBLcient  to  charge  the  company  -with 
damages  resulting  from  default  in  its  transmission. 

It  will  be  noticed  that  the  rule  laid  down  in  Hadley  v.  Baxen- 
dale  '*  requires  that  damages  for  breach  of  contract,  to  be  recover- 
able, must  be  such  as  may  fairly  be  considered  as  arising  naturally 
from  the  breach  of  contract  itself,  or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  both  parties,  when 
they  made  the  contract,  as  the  probable  result  of  the  breach  of  it. 
If  the  damages  sought  to  be  recovered  may  fairly  be  considered  as 
arising  naturally  out  of  the  breach  of  contract  itself,  the  party  who 
has  broken  the  contract  will  be  presumed  to  have  contemplated  them 
as  the  probable  result  of  a  breach.  If,  on  the  other  hand,  the  dam- 
ages sought  to  be  recovered  arose  out  of  special  circumstances,  not 
disclosed  by  the  contract  itself,  they  cannot  be  recovered,  unless  it 
is  shown  that  such  special  circumstances  were  communicated  or 

7  7  39  Kan.  580,  18  Pac.  719.  "  9  Excli.  341. 


{;    121)  >'OTICE    OF    PURPOSE   AND   IMPORTANCE    OF    MESSAGE.  283- 

known  to  the  party  who  broke  the  contract,  so  that  they  can  be  con- 
sidered as  having  been  contemplated  when  he  made  the  contract." 

In  McColl  V.  Telegraph  Oo.*"  the  dispatch  was  as  follows:  "Can 
close  Valkyria  and  Othere,  22,  20  net,  Montreal.  Answer  immediate- 
ly." It  was  held  that  the  sender  could  not  recover  commissions 
which  he  would  have  earned  as  a  broker  in  effecting  a  charter  of  the 
two  vessels  named  in  the  dispatch  if  the  message  had  been  duly 
transmitted,  as  they  were  not  damages  either  actually  contemplated 
or  to  be  fairly  supposed  to  have  been  contemplated  by  the  company. 
"In  the  present  case,"  it  was  said,  "the  text  of  the  message  which 
the  defendants  failed  to  transmit  until  after  a  delay  of  several  days 
indicates  upon  its  face  no  occasion  for  special  care  or  the  involving 
of  the  chartering  of  two  vessels.  There  was  no  notice  or  informa- 
tion of  any  fact  given  to  the  defendant,  or  contained  in  the  message 
itself,  indicating  its  importance  or  that  special  damages  would  re- 
sult from  any  neglect.  However  strongly  the  plaintiff  may  have  felt 
assured,  acting  as  a  broker  in  the  matter,  that  the  offer  telegraphed 
to  his  principals  would  be  accepted,  and  that  he  would  get  his  five 
per  cent,  commission,  yet  there  is  nothing  in  the  case  that  places 
these  contingencies,  in  themselves  uncertain  and  remote,  within  the 
contemplation  of  the  defendant.  It  is  true  the  plaintiff's  principals 
might  have  accepted  the  offer,  and  paid  the  plaintiff  the  commis- 
sions, and  their  evidence  is  that  they  would  have  accepted  it  if  it 
had  not  been  delayed  by  the  neglect  of  the  defendant  in  failing  to 
forward  it  immediately.  The  claim  of  the  plaintiff  is  for  a  special 
and  contingent  loss,  and  not  for  such  a  loss  as  was  the  natural  and 
necessary  consequence  of  the  defendant's  neglect,  or  such  as,  from 
the  surrounding  circumstances,  could  even  be  inferred  by  the  de- 

7  0  See  Smith  v.  Telegraph  Co.,  S3  Kj'.  104;  W.  U.  Tel.  Co.  v.  J.  A.  Koiiip 
Grocer  Co.  (Tex.  Civ.  App.)  2S  S.  W.  00a;  W.  U.  Tel.  Co.  v.  Lively  (T»x. 
App.)  15  S.  W.  197;  McColl  v.  Telegraph  Co.,  44  N.  Y.  Super.  Ct.  4S7;  Bahl- 
win  V.  Telegraph  Co.,  4.j  X.  Y.  744;  Mackay  v.  Telegraph  Co.,  16  Nev.  222, 
228,  and  cases  there  collated;  Dorgan  v.  Telegraph  Co.,  Fed.  Cas.  No.  4,004; 
Smith  V.  Telegraph  Co.,  S3  Ky.  104;  Lowery  v.  Telegraph  Co.,  GO  N.  Y.  I'JS; 
Ilibbard  v.  Telegraph  Co..  33  Wis.  558;  W.  U.  Tel.  Co.  v.  Graham,  1  Cnlo. 
230;  Squire  v.  Telogniph  Co..  08  Mass.  232;  First  Nat.  Bauk  of  Barnesville 
V    W.  U.  Tel.  Co.,  30  Ohio  St.  555. 

80  44  N.  Y.  Super.  Ct.  4S7. 


ZiS-i:  DAMAGES    IN    ACTIONS    AGAINST    TKI.KGKAril    COMPANIES.        (^Ch.    11 

fendant.  The  decision  in  Baldwin  v.  Tolcf^rapli  Co.,^^  that,  where  a 
special  purpose  is  intended  by  one  party,  and  is  unknown  to  the  other, 
and  does  not  appear  by  the  message  itself,  in  the  assessment  of 
damages,  such  special  purpose  cannot  be  taken  into  consideration, 
but  that  the  damages  must  be  limited  to  those  resulting  from  the 
ordinary  and  obvious  puiijose  of  the  contract,  governs  the  case  under 
consideration."  *^ 

81  45  N.  Y.  744. 

82  In  Smith  v.  Telegraph  Co.,  supra,  plaiuliff  had  deposited  with  his  bro- 
kers in  New  York  securities  to  protect  them  in  the  purchase  of  stock  on  his 
account.  Several  purchases  were  made  by  them,  of  which  he  had  notice. 
The  brokers  telegraphed  him  of  another  purchase,  which  telegram  defend- 
ant failed  to  deliver.  There  was  a  decline  in  stocks,  and  plaintiff's  margin 
was  exhausted,  and  his  stocks  sold  at  a  heavy  loss.  It  was  held,  in  a  suit 
for  damages  for  faihu-e  to  deliver  the  telegram,  that  plaintiff  could  not  re- 
cover on  the  ground  that  if  he  had  known  of  the  purchase  mentioned  in  the 
message  he  would  have  protected  his  stock,  and  saved  a  portion  of  his  deposit, 
such  consequences  not  being  the  ordinary  result  of  a  failure  to  deliver  the 
message,  and  contemplated  when  the  company  agreed  to  send  it,  and  plain- 
tiff could  only  recover  the  expense  of  sending  the  message. 

In  W.  U.  Tel.  Co.  v.  Carter,  85  Tex.  580,  22  S.  W.  961,— an  action  for  fail- 
ure to  deliver  promptly  a  message  informing  the  addressee  of  the  death  of  a 
lelative,  so  that  he  was  unable  to  reach  the  home  of  the  relative  in  time  to 
attend  the  funeral,— it  was  held  that  the  expense  of  exhuming  the  body,  and 
removing  it  to  another  place,  was  not  the  proximate  result  of  the  failure  to 
deliver  the  message  promptly,  since  it  could  neither  be  foreseen  that  if  the 
message  were  not  delivered  promptly  the  body  would  be  interred  in  a  place 
which  would  be  unsatisfactory  to  the  addressee,  nor  could  it  be  known  that 
in  such  an  event  the  addressee  would  wish  to  exhume  it. 

In  W.  U.  Tel.  Co.  v.  J.  A.  Kemp  Grocer  Co.  (Tex.  Civ.  App.)  28  S.  W.  005, 
it  was  held  that  a  telegraph  company  failing  to  deliver  a  message  ordering 
goods  already  sold  by  the  sender  for  future  delivery  was  not  liable  for  loss 
of  profits  thereon,  in  the  absence  of  notice  of  such  sale. 

In  W.  U.  Tel.  Co.  v.  Parlin  &  Orendorff  Co.  (Tex.  Civ.  App.)  25  S.  W,  40, 
it  was  held  that  for  failure  of  a  telegraph  company  to  deliver  a  message 
•stating  that  the  sender  would,  at  a  certain  time,  be  at  a  certain  place,  the 
sender  could  not  recover  damages  for  loss  of  profits  on  goods  which  he 
would  have  sold  the  addressee,  the  company  having  no  notice  of  the  purpose 
of  the  message. 

In  W.  U.  Tel.  Co.  v.  Cornwell,  2  Colo.  App.  401,  31  Pac.  303,  C.  left  a  dis- 
patch at  defendant's  telegraph  office  in  S.,  to  be  forwarded  to  plaintiff  at  M. 
The  dispatch  was:  "Strauss  gone  to  Howard.  Gave  man  gold  watch  by 
mistake.     Left  no  word  with  me.     Store  closed.     Answer."    Strauss  was   a 


§    121)  NOTICE    OF    PURPOSE    AND    IMPORTANCE    OF    MESSAGE.  285'- 

On  the  question  as  to  how  far  mere  indefiniteness  iu  the  lauguage 
of  a  message  will  defeat  a  recovery  for  consequential  damages 
against  a  telegraph  company,  the  decisions  are  not  harmonious. 
There  are  some  cases  that  go  to  the  extent  of  holding  that  the  oper- 
ator who  transmitted  the  message  must  have  been  able  to  under- 
stand its  meaning  as  the  sender  and  part}^  to  whom  it  was  sent 
understood  it;  otherwise,  it  is  said,  he  cannot  reasonably  be  sup- 
posed to  have  contemplated  damages  as  the  probable  consequence 

clerk,  whom  plaintiff  had  left  in  charge  of  his  jewelry  store  in  his  absence, . 
and  during  the  night  or  early  in  the  morning,  before  the  dispatch  was  sent,, 
had  robbed  the  store,  and  absconded  with  the  property;  and  the  dispatch, 
was  in  relation  to  the  absconding,  but  defendant's  agent  had  no  notice  there- 
of. The  dispatch  remained  in  the  S.  oflace  an  hour  and  a  half,  and  was  then, 
forwarded  to  the  M.  office,  where  it  remained  two  hours  before  it  was  deliv- 
ered, or  any  effort  made  to  deliver  it.  Held,  that  plaintiff  could  not  recover- 
more  than  the  cost  of  the  message  and  incidental  expenses. 

In  Cahn  v.  Telegraph  Co.,  2  U.  S.  App.  24,  1  C.  G.  A.  107,  and  4S  Fed.  SIO, 
it  was  held  that  a  telegraph  company  could  not  be  held  liable  for  loss  of 
profits  alleged  to  result  from  delay  iu  sending  a  message  to  sell  200  shares  of 
certain  stock  merely  because  the  operator  who  received  the  message  for- 
transmission  was  familiar  with  the  method  of  dealing  on  the  New  York 
stock  exchange,  and  knew  from  the  message  that  a  "short"  sale  was  intended, 
which  necessarily  implied  the  sending  of  a  subsequent  order  to  buy  for  the 
purpose  of  "covering."  It  was  further  held  iu  that  case  that,  whore  one  de- 
livers to  a  telegraph  company  for  transmission  a  message  to  sell  200  shares 
of  certain  stock,  the  legal  presumption  which  the  company  is  authorized  to- 
make  is  that  it  is  an  order  to  sell  stock  held  by  the  sender,  and  not  that  he 
intended  to  sell  something  which  he  neither  had  nor  proposed  to  acquire,  for 
such  a  presumption  Avould  involve  a  violation  of  the  law,  as  held  by  some  of 
the  highest  courts  in  the  country. 

In  W.  U.  Tel.  Co.  v.  Short,  53  Ark.  434,  14  S.  "W.  ('49,  a  message  to  plaintiff 
had  been  delivered  to  defendant  telegraph  company  reciting  that  a  certain 
case  was  set  for  August  17th.  As  delivered  to  plaintiff,  it  read  August  7th. 
It  was  held  that  defendant  was  liable  for  plaintiff's  reasonable  expenses  iu 
going  to  and  from  the  trial,  and  the  value  of  his  time;  but  that,  there  being 
no  evidence  that  the  company  had  notice  of  special  circumstances  connected 
with  the  sending  of  the  message,  it  was  not  liable  for  loss  to  plaintiff  re- 
sulting from  the  necessity  of  sljutling  down  his  mill,  idleness  of  his  teams, 
etc.,  during  his  absence. 

In  Barrett  v,  I'elcgraph  Co.,  42  Mo.  App.  512,  it  \vas  hcul  that  for  the 
failure  of  a  telegraph  company  to  transmit  a  telegram  iu  relation  to  a  ship- 
ment of  three  loads  of  cattle,  and  the  cashing  of  a  (haft  therefor,  damages 
cannot  be  extended  beyond  the  loss  sustained  on  three  loads,  as  only  damages 


286  DAM.\G1-:S    IX    ACTIONS    AGAINST    TEI-EGKAI'II    COMPANIES.        (Ch.    11 

of  a  failure  to  transmit  it.*^  Most  of  the  cases,  however,  hold  that, 
where  enough  appears  in  the  message  to  show  that  it  relates  to  a 
commercial  business  transaction  between  the  correspondents,  it  is 
sufficient  to  charge  the  company  with  damages  resulting  from  its 
negligent  transmission  or  a  failure  to  transmit  it.^*  In  Postal  Tel. 
Cable  Co.  v.  Lathrop  ^^  the  rule  was  stated  to  be  that  "where  a  mes- 
sage as  written,  read  in  the  light  of  well-known  usage  in  commercial 
correspondence,  reasonably  informs  the  operator  that  the  message 
is  one  of  business  importance,  and  discloses  the  transaction  so  far 
as  is  necessary  to  accomplish  the  purpose  for  which  it  is  sent,  the 
company  should  be  held  liable  for  all  the  direct  damages  resulting 
from  a  negligent  failure  to  transmit  it  as  written,"  etc.  Where  a 
telegraph  message,  when  read  in  the  light  of  well-known  usage  in 
commercial  correspondence,  reasonably  informs  the  operator  that 
the  message  is  one  of  business  importance,  and  discloses  the  trans- 
action so  far  as  it  is  necessary  to  accomplish  the  purpose  for  which 
it  is  sent,  the  telegraph  company  is  liable  for  all  direct  damages 
from  the  negligent  failure  to  transmit  or  deliver  it,  as  written,  with- 
in a  reasonable  time.^®    Where  the  subject  to  which  a  telegram  re- 

as  to  such  loads  might  be  fairly  considered  as  arisiug  naturally,  and  to  have 
been  in  contemplation  of  the  parties  to  the  contract. 

In  W.  U.  Tel.  Co.  v.  Smith,  76  Tex.  253,  13  S.  W.  169,  the  plaintiff  deliv- 
ered to  a  telegraph  company  for  transmission  a  message  as  follows:  "R.  [Ad- 
dressed]. Meet  me  In  C.  Saturday  night.  S.,"— which  was  not  delivered  to 
R.;  and  plaintiff  brought  an  action  against  the  company,  alleging  that  by  its 
negligence  he  was  put  to  expense  in  hiring  a  conveyance  to  go  from  C.  to  R.'s 
home,  and  back  again;  that  by  loss  of  time  he  failed  to  meet  important  en- 
gagements; and  that,  by  reason  of  exposure,  his  health  was  greatly  impaired. 
It  was  held  that  the  petition  was  bad  on  demurrer,  the  damages  being  too 
remote,  conjectural,  and  not  in  contemplation  of  the  parties,  in  case  of  a 
breach  of  the  contract. 

83  See  cases  cited,  supra. 

84  See  Tyler  v.  Telegraph  Co.,  60  111.  421,  74  111.  168;  Telegraph  Co.  v.  Gris- 
wold,  37  Ohio  St.  302;  Marr  v.  Telegraph  Co.,  85  Tenn.  530,  3  S.  W.  49G;  W. 
U.  Tel.  Co.  V.  Blauchard,  68  Ga.  29'J;  Squire  v.  Telegraph  Co.,  98  Mass.  232; 
Hadley  v.  Telegraph  Co.,  115  lud.  200,  15  N.  E  845;  Manville  v.  Telegraph 
Co.,  37  Iowa,  214;  W.  U.  Tel.  Co.  v.  Williford  (Tex.  Civ.  App.)  27  S.  W.  700; 
Herron  v.  Telegraph  Co.  (Iowa)  57  N.  W.  696. 

8  5  131  111.  575,  23  N.  E.  583. 

86  Bierhaus  v.  Telegraph  Co.,  8  Ind.  App.  246,  34  ^^  K,.  581. 


§    121)  NOTICE    OF    PURPOSE    AXD    IMPORTANCE    OF    MESSAGE.  287 

lates  (as  a  proposition  to  sell  goods  at  a  given  rate)  is  understood 
by  the  company,  it  is  not  necessary,  in  order  to  make  it  liable  in 
compensatory  damages  for  negligence  in  transmission,  that  the  com- 
pany should  be  able  to  foresee  the  exact  amount  of  pecuniary  loss 
which  such  negligence  is  likely  to  cause.*^  A  telegraph  company 
is  not  relieved  from  liability  for  special  damage  resulting  from  delay 
in  delivering  a  message,  which  prevented  plaintiff  from  entering  into 
certain  contracts,  by  the  fact  that  at  the  time  the  message  was  sent 
it  had  no  notice  of  the  contracts  plaintiff  was  about  to  enter  into, 
or  the  damages  liable  to  arise  from  such  delay.** 

Illustrations. 

In  United  States  Tel.  Oo.  v.  Wenger  *^  a  message  read:  "Buy 
fifty  (50)  Northwestern  fifty  (50)  Prairie  du  Chien,  limit  forty-five 
(45)."  Tliere  was  a  delay  in  its  delivery,  resulting  in  a  loss  to  the 
sender  on  account  of  the  advance  in  price  of  Chicago  &  Northwestern 
Railway  Company  stock,  and  the  Milwaukee  &  Prairie  du  Chien 
Railway  Company  stock,  which  the  message  was  intended  to  order 
purchased.  A  recovery  was  sustained,  the  court  saying:  "The  dis- 
patch was  such  as  to  disclose  the  nature  of  the  business  to  which  it 
related,  and  that  the  loss  might  be  very  likely  to  occur  if  there  was 
a  want  of  promptitude  in  transmitting  it,  containing  the  order." 

In  W.  U.  Tel.  Co.  v.  Haman  ®°  a  member  of  the  plaintiff  firm,  after 
receiving  instructions  by  telegraph,  purchased  a  quantity  of  wool, 
and  delivered  to  the  defendant  telegraph  company  a  message  ad- 
vising the  firm  thereof,  telling  the  agent  that  the  message  was  im- 
[)ortant,  and  that  he  thought  his  firm  had  probably  contracted  to 
sell  the  wool;  and, to  avoid  any  mistake,he  had  the  agent  transcribe 
the  message,  and  signed  the  copy.  It  was  held  that  the  circumstan- 
ces surrounding  the  delivery  of  the  message  to  the  agent  were  suffi- 
cient to  apprise  him  of  its  importance  and  the  consequence  of  a 
failure  to  deliver  it. 

In  Martin  v.  Telegraph  Co."^  the  plaintiff  sued  defendant  telegraph 
company  for  delay  in  delivering  Ihe  message:     "M.  &  Co.  hold  note 

87  Popper  V.  Telegraph  Co.,  87  Teun.  554,  11  S.  W.  783. 

88  Gulf,  C.  &  S.  I'\  Ky.  Co.  v.  Looiiie,  82  Tex.  3:i3,  18  S.  VV.  '221. 

89  55   Pa.   St.   262. 

»o  2  Tex.  Civ.  A  pp.  100,  20  S.  W.  1133. 
»i  1  Tex.  Civ.  App.  143,  20  S.  W.  8t>0. 


288  DAMAGES    IN    ACTIONS    AGAINST    TELEGH  VPM    COMPANIES.        (Ch.    11 

of  W.  Will  be  attached  to-night.  Your  bank  telegraph  M,  Bros^ 
bankers,  to  make  bond."  It  was  held  that  the  message  was  suffi- 
cient on  its  face  to  show  that  its  prompt  delivery  was  necessary  to 
avert  a  loss. 

In  W.  U.  Tel.  Co.  v.  Williford  °-  the  defendant  telegraph  company 
received  for  transmission  to  plaintiff  the  following  message:  "How 
many  beeves  and  bulls  have  you?  Don't  go  away;  will  get  them  off. 
Answer."  It  was  held  that  the  message  advised  defendant  that  it 
related  to  a  matter  of  business  in  which  loss  would  probably  result 
if  it  was  not  promptly  delivered,  and  defendant  was  liable  for  nom- 
inal damages,  and  for  such  further  damages  as  naturally  resulted 
from  the  failure  to  deliver  the  message. 

In  Bierhaus  v.  Telegraph  Oo.®^  an  attorney  wired  wholesale  deal- 
ers: "Have  3'ou  claim  against  P.  L.  D.?  Answer  how  much."^ 
The  latter  replied:  "Yes;  one  hundred  and  sixty-one  dollars  and 
fifteen  cents."  It  was  held  that  the  telegraph  company  was  liable 
to  such  dealers  for  special  damages  for  failure  to  deliver  such  mes- 
sages within  a  reasonable  time,  though  it  was  not  informed  of  their 
importance  otherwise  than  by  their  character. 

In  W.  U.  Tel.  Co.  v.  Lowrey  ^*  it  was  held  that  a  telegram  direct- 
ing commission  merchants  in  Chicago  to  sell  corn  in  their  posses- 
sion is  sufficient  of  itself,  without  instructions,  to  indicate  to  the 
operator  to  whom  it  is  delivered  the  necessity  for  its  prompt  trans- 
mission, so  as  to  render  the  telegraph  company  liable  for  delay  in 
transmitting  it. 

In  Garrett  v.  Telegraph  Co.®°  a  dealer  in  cattle  living  in  Iowa 
wired  his  Chicago  correspondent,  "Send  me  market,  Kansas  City, 
to-morrow  and  next  day."  He  had  previously  sent  and  received  a 
great  many  messages  from  that  office.  It  was  held  that  it  was  a 
question  for  the  jury  whether  the  message  charged  the  company 
with  notice  that  the  sender  intended  to  act  upon  the  result  of  it  in 
buying  or  selling  cattle  at  Kansas  City. 

In  Mo  wry  v.  Telegraph  Co.^^  it  appeared  that,  on  the  day  the 
message  was  sent,  plaintiffs  received  a  message  from  defendant 
which  gave  the  price  of  hams,  etc.,  and  in  answer  plaintiffs  deliv- 

8  2  2  Tex  Civ.  App.  574,  22  S.  W.  244.  9*  32  Xftb.  732.  49  N.  W.  707. 

8  3  8  Ind.  App.  24G,  34  N.  E.  .581.  ss  83  Iowa.  257,  49  N.  W.  88. 

8  6  51  Hun,  126,  4  N.  Y.  Supp.  G66. 


i    122)  MESSAGES    KOT    UNDERSTOOD CIPHER    MESSAGES.  289 

ered  to  defendant  the  reply:  "Will  take  two  cars  sixteens.  Ship 
soon  as  convenient,  via  West  Shore."  It  was  held  that  the  contents 
of  the  message  were  such  as  to  indicate  to  defendant  that  it  was 
important,  and  that  a  failure  to  send  it  would  result  in  loss  to  the 
parties,  and  that  defendant  was  liable  for  the  loss  to  plaintiffs 
caused  by  the  rise  in  the  price  of  hams  between  the  delivery  of  the 
message  to  defendant  and  its  transmission. 

In  W.  U.  Tel.  Oo.  v.  Sheffield  ^'  the  plaintiffs  sued  defendant  tele- 
graph company  for  delay  in  transmitting  the  message,  '^^ou  had  bet- 
ter come  and  attend  to  your  claim  at  once,"  sent  to  them  by  a  bank 
which  was  holding  notes  for  collection  for  plaintiffs  against  a  fail- 
ing debtor.  It  was  held  that  the  language  of  the  message  was  suffi- 
cient, of  itself,  to  indicate  to  the  operator  the  urgency  of  the  mes- 
sage, so  as  to  bring  such  matter  into  the  contemplation  of  the  par- 
ties in  sending  the  message.  And  it  was  further  held  that  the  ne- 
cessity of  speed  and  carefulness  was  sufficiently  shown  by  the  mes- 
sage, without  the  addition  of  the  names  of  the  debtors,  the  claims 
against  whom  demanded  attention." 

Of  course,  when  the  receiving  agent  knows  personally  the  purpose 
and  urgency  of  a  message,  it  need  not  be  shown  that  notice  thereof 
was  given  him  by  the  sender,  for  to  give  him  notice  thereof  would 
be  useless.^ ^  If  the  agent  knew  of  the  importance  of  the  prompt 
delivery  of  the  message,  or  could  have  discovered  it  from  the  terms 
of  the  telegram,  or  from  other  telegrams  in  reference  to  the  same 
matter,  the  company  is  chargeable  with  knowledge  of  the  fact.*** 

SAME— MESSAGES   NOT   UNDERSTOOD— CIPHER    MESSAGES. 

122.  Where  a  message  cannot  be  understood  by  the  com- 
pany's ag-ents,  consequential  damages  cannot  be 
recovered. 
EXCEPTION — In  some  jurisdictions  telegraph  compa- 
nies are  held  liable  for  damages  caused  by  their 
default  whether  or  not  the  result  was  known  by 
the  company  to  be  probable.'"" 

97  71   Tfx.  .^70.   10  S.  W.  752. 

9  8  w.  U.  Tel.  Co.  v.  Jobe,  6  Tex.  Civ.  App.  403,  2~)  S.  W.  103G. 

»»  Erie  Telegraph  &  Telephone  Co,  v.  Grimes,  82  Tex.  89,  17  S.  W.  831. 

100  Sedg.  Dam.  §  891. 

l.AW  DAM.  —  I'.i 


290  DAMAGES    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.         (Ch.    11 

The  General  Rule. 

It  is  held,  in  most  jurisdictions,  that  where  a  message  cannot  b 
understood  b}'  the  company's  agents,  as  where  it  is  written  in  cipher, 
consequential  damages  cannot  be  recovered,  and  the  company  is  lia- 
ble only  for  nominal  damages,  or  at  most  the  price  paid  for  send- 
ing the  message.  All  the  cases  which  hold  that  a  telegraph  com- 
pany is  not  liable  for  consequential  damages  for  a  failure  to  trans- 
mit a  dispatch  as  received,  on  the  ground  of  indefiniteness  or  ob- 
scuritj'  in  the  language  of  the  message,  do  so  upon  the  ground  that, 
unless  the  agent  of  the  company  may  reasonably  know  from  the 
message  itself,  or  is  Informed  by  other  means,  that  it  relates  to  a 
matter  of  business  importance,  he  cannot  be  supposed  to  have  con- 
templated damages  as  a  result  from  his  failure  to  send  it  as  written. 

The  supreme  court  of  Wisconsin,  in  Candee  v.  Telegraph  Co.,^°^ 
say:  "The  operator  who  receives  and  w4io  represents  the  company, 
and  may  for  this  purpose  be  said  to  be  the  other  party  to  the  con- 
tract, cannot  be  supposed  to  look  upon  such  a  message  as  one  per- 
taining to  transactions  of  pecuniary  value  and  importance  and  in 
respect  to  which  pecuniary  loss  or  damages  will  naturally  arise 
in  case  of  his  failure  or  omission  to  send  it.  It  may  be  a  mere 
items  of  news,  or  some  other  communication  of  trifling  and  unim- 
portant character." 

In  Postal  Tel.  Cable  Co.  v.  Lathrop  ^*'-  it  is  said:  "It  is  clear 
enough  that,  applj-ing  the  rule  in  Hadley  v.  Baxendale,^°^  a  recov- 
ery cannot  be  had  for  a  failure  to  correctly  transmit  a  mere  cipher 
dispatch,  unexplained,  for  the  reason  that  to  one  unacquainted  with 
the  meaning  of  the  ciphers  it  is  wholly  unintelligible  and  nonsen- 
sical. An  operater  would  therefore  be  justifiable  in  saying  it  con- 
tains no  information  of  value  as  pertaining  to  a  business  transac- 

101  84  Wis.  472. 

102  131  111.  575,  23  N.  E.  5S3.  Cf.  W.  U.  Tel.  Co.  v.  Hyer  Bros.,  22  Fla.  G37, 
1  South.  129,  where  it  was  said:  "The  larger  part  of  all  messages  sent  are  of  a 
commercial  or  business  nature,  which  suggest  value.  The  requirements  of 
friendship  or  pleasure  can  await  other  means  of  less  severity  and  less  expense. 
If  this  be  true,  why  should  the  law  assume  that,  as  a  rule,  all  messages  sent 
over  it  are  unimportant,  and  that  au  important  one  is  an  exception,  of  which 
the  operator  is  to  be  informed?" 

10  3  9  Exch.  341. 


§    122)  MKSSAGES    NOT    UNDERSTOOD CIPHER    MESSAGES.  291 

tion,  and  a  failure  to  send  it,  or  a  mistake  in  its  transmission,  can 
reasonably  result  in  no  pecuniary  loss." 

In  W.  U.  Tel.  Co.  y.  Way  ^•'*  it  is  said  that  the  rule  in  Hadley  v. 
Caxendale  "has  been  universally  accepted  to  mean  that  liability  for 
damages,  in  cases  of  mere  breach  of  contract,  must  have  some  nec- 
essary relation  to  what  may  naturally  be  expected  to  follow  its  vio- 
lation, or  to  such  results  as  may  be  fairly  supposed,  in  the  eye  of  the 
law,  to  have  entered  into  the  contemplation  of  the  irties  when  they 
made  the  contract.  The  knowledge  which  is  the  basis  of  this  lia- 
bility, and  which  imputes  notice  of  the  object  of  the  contract,  can 
be  derived  only  in  one  of  two  ways:  (1)  From  the  face  of  the  mes- 
sage itself;  or  (2)  from  extrinsic  information  imparted  by  the  sender. 
Unintelligible  or  cipher  dispatches  give  no  clue  as  to  the  special 
damage  that  may  result  from  negligence  in  transmitting  them,  and 
afford  no  ground  for  the  company  to  suppose  that  any  loss  other 
than  nominal  can  follow  from  a  failure  to  send  them.  The  wisdom 
and  justice  of  the  rule  is  nowhere  better  illustrated  than  in  the 
transmission  of  such  dispatches.  ^\Tien  the  sender  elects  to  studi- 
ously conceal  from  the  operator  the  contents  or  nature  of  the  mes- 
sage, he  thereby  deliberately  puts  the  telegraph  company  in  the 
darkness  of  ignorance  as  to  the  character  of  the  duty  imposed  upon 
:.t,  or  the  magnitude  of  its  liability.  The  company  cannot  know, 
therefore,  whether  the  breach  of  the  obligation  will  probably  be  fol- 
lowed by  a  hundred  or  a  hundred  thousand  dollars  damages.  This 
is  both  unreasonable  and  unjust,  for  telegraph  companies  are  not 
common  carriers  or  insurers;  but  their  liability,  like  that  of  or- 
dinary bailees,  is  based  upon  the  degree  of  care  or  negligence  exer- 
cised by  them  in  the  discharge  of  their  duties.  The  care  and  dili- 
gence must  then,  upon  every  well-settled  principle  of  our  jurispru- 
dence, be  in  proportion  to  the  duty  in  hand,  varvmg  according  to  the 
magnitude  and  nature  of  the  subject-matter  of  the  bailment.  Noth- 
ing is  more  important  or  just,  in  this  view  of  the  subject,  than  that 
the  law  should  require  the  sender  at  his  hazard  to  disclose  the  mean- 
ing or  nature  of  the  message,  in  order  that  the  company  may  observe 
such  precautions  as  may  be  necessary  to  guard  itself  against  the 
risk  incident  to  the  duty  to  be  performed."  '"" 

104  8.'?  Ala.  ~>42,  4  South.  8r>.3,  per  Sonimorvllle,  J.,  dissontlng. 

105  Se«  rriiiirose  v.  Tek';,'rai)li  Co.,  154  U.  S.  1,  14  Sup.  Ct.  lO'JS;    Birncy  v. 


292  DAMAGKS    IN    ACTIONS    AGAINST    TELEGRAPH    COMPANIES.         (Ch.    1 H 

In  rrimrose  v.  Telegraph  Co.^°®  it  was  held  that  a  telegraph  com- 
pany is  not  liable  to  the  sender  of  a  message  for  losses  on  purchases 
of  wool  caused  by  a  mistake  in  transmitting  it,  where  it  was  in  ci- 
pher, wholly  unintelligible  to  the  compan}'  and  its  agents,  and  they 
were  not  informed  of  the  nature,  importance,  or  extent  of  the  trans- 
action to  which  it  related,  or  of  the  probable  consequences,  if  it  were 
transmitted  incorrectly,  although  they  knew  that  the  sender  was  a 
wool  merchant,  and  that  the  person  addressed  was  in  his  employ. 

The  Exception. 

Some  of  the  courts  have  taken  a  contrary  view,  and  have  held  tnat 
a  telegraph  company  which  negligently  fails  to  send  or  to  deliver^ 
or  which  makes  a  mistake  in  transmitting,  a  message,  is  liable  for 
all  the  damages  naturally  flowing  from  such  failure  or  mistake^ 
though  the  message  was  in  cipher  and  its  contents  uncommunicated 
and  wholly  unintelligible  to  the  company.^ "^  It  was  said  in  W.  U, 
Tel.  Co.  V.  Way  ^°*  that  the  principle  of  the  Hadley  v.  Baxendale 
case,  construed  with  reference  to  the  facts  of  the  case  and  the  ques- 
tions involved,  "is  that  special  circumstances,  which  take  the  con- 
tract out  of  the  usual  course  of  things,  must  be  communicated,  in 

Telegraph  Co.,  IS  Md.  341;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232? 
Baldwin  v.  Telegraph  Co.,  45  N.  Y.  744;  Landsberger  v.  Telegraph  Co.,  32 
Barb.  (N.  Y.)  530;  McColl  v.  Telegraph  Co.,  44  N.  Y.  Super,  Ct.  4S7;  Dauiel- 
V  Telegraph  Co.,  61  Tex.  452;  First  Nat.  Bank  of  Barnesville  v.  W.  U.  TeL 
Co.,  30  Ohio  St.  555;  Stevenson  v.  Telegraph  Co.,  IG  U.  C.  Q.  B.  530;  W.  U, 
Tel.  Co.  V.  Martin,  9  111.  App.  587;  Sanders  v.  Stuart,  1  C.  P.  Div.  326,  45  Law 
J.  C.  P.  GS2;  Beaupre  v.  Telegraph  Co.,  21  Minn.  155;  Mackay  v.  Telegraph' 
Co.,  16  Nev.  222;  Camp  v.  Telegraph  Co.,  1  Mete.  (Ky.)  164;  W.  U.  Tel.  Co. 
V.  Hall,  124  U.  S.  444,  8  Sup.  Ct.  577;  Cannon  v.  Telegraph  Co.,  100  N.  C, 
300,  6  S.  E.  731;  Abeles  v.  Telegraph  Co.,  37  Mo.  App.  554;  Behm  v.  Tele- 
graph Co..  Fed.  Cas.  No.  1,234;  Hill  v.  Telegraph  Co.  (S.  C.)  20  S.  E.  135 r 
W.  U.  Tel.  Co.  V.  AYilson,  32  Fla.  527,  14  South.  1  (overruling  W.  U.  Tel.  Co.  v, 
Hyer  Bros.,  22  Fla.  637,  1  South.  129). 

IOC  154  U.  S.  1,  14  Sup.  Ct.  lO'JS. 

107  Daughtery  v.  Telegraph  Co.,  75  Ala,  168;  W,  U,  TeL  Co.  v.  Way,  83  Ala.. 
542,  4  South,  844;  American  Union  Tel.  Co.  v.  Daughtery,  SO  Ala.  191,  7  South, 
660;  W,  U.  Tel.  Co.  v.  Fatman.  73  Ga.  285;  Postal  Tel.  Cable  Co.  v.  Lathrop^ 
33  111.  App.  400  (affirmed  in  131  111.  575,  23  N.  E.  583);  W.  U.  Tel.  Co.  v. 
Reynolds,  77  Va.  173;  W.  U.  Tel.  Co.  v.  Hyer  Bros.,  22  Fla.  037,  1  South.  12D' 
(overruled  by  W.  U.  Tel.  Co.  v.  Wilson,  32  Fla.  527,  14  South.  1). 

10  8  S3  Ala.  542.  4  South.  844. 


§  123)  AVOIDABLE  co.nsp:quences.  293 

order  to  become  an  element  of  the  duty  in  reference  to  which  the 
pai'ties  are  presumed  to  contract,  and,  if  unknown,  damages  suffered 
by  reason  of  the  existence  of  such  special  circumstances  are  not  re- 
coverable; but  that,  in  all  cases,  the  damages  which  would  nat- 
urally, generally,  and  proximately  result  from  a  breach  of  the  con- 
tract, 'according  to  the  usual  course  of  things,'  are  recoverable. 
Whether  or  not  actually  contemplated  by  the  parties,  the  law  con- 
clusively presumes  them  to  have  been  in  their  contemplation.  Such, 
sls  this  court  understands,  is  the  proper  construction  to  be  placed 
on  the  words  'in  the  contemplation  of  both  parties  at  the  time  they 
made  the  contract,'  as  employed  in  the  statement  of  recoverable 
damages  in  Hadley  v,  Baxendale."  The  cases  supporting  this  rule 
are  certainly  opposed  to  the  weight  of  authority,  but  it  is  by  no 
means  clear  that  they  cannot  be  sustained  on  principle.  As  has 
been  seen,  the  direct  loss  caused  by  a  breach  of  contract  may  be 
compensated,  even  though  it  was  wholly  unexpected. ^"^  The  direct 
damages  resulting  from  breach  of  contract  to  transmit  a  cipher 
message  is  the  loss  of  the  value  of  the  information  contained.^ ^° 
This  value,  and  not  the  consideration  paid  for  sending  the  message, 
sliould  be  the  measure  of  damages.  The  rule  of  Hadley  v.  Baxen- 
dale limits  liability  only  for  consequential  damages.  It  does  not 
apply  to  direct  damages. 

Ahbrecidtions. 

Abbreviations  commonly  used  in  trade  and  understood,  or  which 
ought  to  be  understood,  by  the  telegraph  company,  do  not  make  a 
telegram  a  cipher  message.^  ^^ 

SAME— AVOIDABLE  CONSEQUENCES. 

123    Plaintiff  cannot  recover  for  consequential  losses  w^liich 
he  could  have  avoided  -with  reasonable  diligence. 

The  rule  of  avoidable  consequences  applies  with  full  force  to 
contracts  with  telegraph  companies  for  the  transmission  of  mea- 

108  See  ante,  p.  3S. 

110  Sedg.   Dam.   §   802. 

111  Popper  V.  Tele«iapli  Co.,  87  'Jonn.  '>'>\,  11  S.  W.  7s;;;    I'ostiil  Tel.  Cahle 
Co.  V.  Latluup,  lol  111.  57"),  'J.'3  N.  E.  583. 


2U4  DA.MAGliS    IN    ACTIONS    AGAINST    TELKGRAPH    COMPANIES.         (Ch.    11 

snj^es.  The  sender  or  addressee  of  a  telegram,  as  the  case  may  be, 
on  discovering  that  it  has  not  been  sent  or  delivered,  or  that  an 
error  has  occurred  in  its  transmission,  must  take  all  reasonable  steps 
to  prevent  loss.  The  law  imposes  upon  a  party  subjected  to  injury 
by  the  action  of  another  the  active  duty  of  making  reasonable  exer- 
tions to  render  the  injury  as  light  as  possible.  ''"VMiere  the  injury 
results  from  breach  of  contract  or  unintentional  negligence,  this  ob- 
ligation to  reduce  the  consequence  of  the  injury  by  reasonable  dili- 
gence is  positively  imposed  by  every  consideration  of  public  interest 
and  sound  morality;  and  if  the  injured  party,  througli  negligence  or 
willfulness,  allow^s  the  damage  to  be  unnecessarily  enhanced,  the 
increased  loss  falls  justly  on  him."  ^^^  In  Marr  v.  Telegraph  Co.^^* 
the  plaintiff  had  delivered  to  the  defendant  a  message  to  a  broker 
to  buy  1,000  shares  of  certain  stock  for  him,  and  by  mistake  the 
message  was  sent  for  100  shares  only.  The  plaintiff  knew  of  the 
mistal^e  the  day  after  the  100  shares  had  been  purchased,  but  did 
not  renew  his  order  until  several  days  after  the  stock  had  advanced. 
It  was  held  that,  for  the  advance  occurring  after  the  plaintiff  could 
have  remedied  the  mistake,  the  defendant  was  not  responsible.  In 
Danghtery  v.  Telegraph  Co.^^°  the  court  held  that,  for  failure  to 
deliver  a  message  directing  the  sale  of  cotton  owned  by  the  sender, 
he  could  recover  the  actual  damages  sustained  by  a  fall  in  the 
price  of  the  cotton  between  the  time  when  it  would  have  been  sold 
if  the  message  had  been  delivered,  and  the  time  it  was  actually  sold, 
but  added  the  qualification  that,  as  soon  as  the  sender  discovered 
that  the  message  had  not  been  sent,  it  became  his  duty,  within  a 
reasonable  time,  to  repeat  the  order  or  direction  to  sell,  or  to  take 
other  requisite  steps  to  prevent  further  loss.  In  W.  U.  Tel.  Co.  v. 
Hearne,^^®  an  action  against  a  telegraph  company  for  failure  to 
transmit  a  telegram,  whereby  the  mortgage  on  plaintiff's  property 
was  foreclosed,  it  was  held  that  plaintiff  must  show  that  he  could 
not  obtain,  from  other  sources,  funds  necessary  to  discharge  the 
debt  maturing  by  failure  to  send  the  telegram  as  agreed.     In  Gulf, 

113  Marr  v.  Telegraph  Co.,  85  Tenn.  529,  3  S.  W.  496;   Leonard  v.  Telegraph 
Co.,  41  N.  Y.  544;  Rittenhouse  v.  Independent  Line  of  Telegraph,  44  N.  Y.  2l^>. 

114  85  Tenn.  529.  3  S.  W.  49G. 

115  75  Ala.  168. 

116  7  Tex.  Civ.  App.  67,  20  S.  W.  478. 


§    124)  EXEMPLARY    DAMAGES.  295 

C.  &  S.  F.  Ry.  Co.  V.  Loonie,^^''  which  was  an  action  against  a  tele- 
graph company  for  failure  to  deliver  a  telegram  sent  by  plaintiff, 
directing  that  certain  building  plans  be  sent  to  him  at  C,  so  as  to 
enable  him  to  conclude  contracts  for  the  material  to  be  used  in  the 
building,  it  was  held  that  the  refusal  to  instruct  the  jury  that  it  was 
plaintiff's  duty  to  use  reasonable  efforts  to  avoid  or  lessen  his  dam- 
age, and  if  a  reasonably  prudent  business  man  would  have  sent 
another  telegram  for  the  plans,  and  if  such  telegram  had  been  sent 
the  plans  would  have  reached  plaintiff  in  time  to  have  consummated 
his  contract,  then  plaintiff  is  only  entitled  to  compensation  for  the 
value  of  his  time  and  expense  during  the  extra  time  he  would  have 
been  kept  at  C.  on  account  of  the  delay,  was  error. 

EXEMPLARY  DAMAGES. 

124.  Telegraph  companies  are   liable   for  exemplary  dam- 
ages -whenever  other  defendants  would  be  liable. 

Exemplary  or  punitive  damages  are  given,  not  by  way  of  compen- 
sation, but  by  way  of  punishment,  for  the  purpose  of  deterring  the 
defendant  and  others  from  similar  acts  in  the  future.^^'  They  are 
not  allowed  for  a  mere  breach  of  contract.  In  such  cases  the  dam- 
ages are  compensatory  only.  Nor  are  they  allowed  for  mere  negli- 
gence without  any  aggravating  circumstances."®  But  for  negligence 
that  is  gross,  or  any  wrong  that  is  willful  or  malicious,  exemplary 
damages  may  be  recovered  in  addition  to  the  damages  allowed  as 
compensation.^^"  This  rule  applies  in  all  the  states  to  actions 
against  telegraph  companies  for  failure  to  send  or  deliver  a  message, 
where  the  action  is  in  tort,  and  based  on  the  company's  negligence. 
Unless  there  is  a  willful  breach  of  duty,  or  gross  negligence,  puni- 
tive or  exemplary  damages  cannot  be  allowed.  But  if,  on  the  other 
hand,  there  is  gross  negligence  or  willfulness,  the  company  is  liable 

117  S2  Tox.  323.  IS  S.  W.  221. 

118  7>eriy  v.  Fletcher,  Fed.  Cas.  No.  1,3.">7. 

iioMcCiill  V.  MffDowell,  Fed.  Cas.  No.  H,G73;  Berry  v.  Flotclior.  Fed.  Cas. 
No.  1,357;   Milwaukee  &  St.  P.  Uy.  Co.  v.  Arms,  91  U.  S,  481). 

120  Philadelphia  W.  &.  15.  K.  Co.  v.  Qui;^dey,  21  How.  202;  Day  v.  Wood- 
worth,  13  How.  303. 


296  DAMAGES    IN    ACTIONS    AGAINST    TKLICGRAPII    COMPANIES.         (Cll.    11 

for  punitive  or  exemplary  damages  in  addition  to  the  damage  actu- 
ally sustained. ^'^  In  McAllen  v.  Telegraph  Co.^^^  it  appeared  that 
plaintiff  was  informed  by  defendant's  agent  that  there  was  a  tele- 
graph office  at  the  station  to  which  he  sent  the  message,  and  that  the 
agent  soon  after  sending  the  message  discovered  that  the  office  had 
been  closed,  but  concealed  this  knowledge  from  plaintiff.  The  agent 
^^•as  not  informed  that  the  message,  which  in  form  was  an  ordinary 
telegram,  was  of  great  importance.  It  was  held  that  excmplaiy 
damages  could  not  be  recovered.  In  West  v.  Telegraph  Co.  ^-^  it 
appeared  that  the  telegraph  company  accepted  a  written  message, 
and  received  pay  for  its  immediate  transmission  and  delivery,  and 
the  agents  of  the  company  failed  to  transmit  or  deliver  the  same, 
on  account  of  such  gross  negligence  as  amounted  to  wantonness  or 
a  malicious  purpose,  and  the  company  was  held  liable  for  exemplary 
damages  in  addition  to  the  actual  damages  sustained. 

At  common  law,  exemplary  damages  cannot  be  recovered  in  an 
action  for  breach  of  contract,  compensatory  damages  only  being  con- 
sidered in  such  actions,  and  therefore  exemplary  damages  could  not 
be  recovered  against  a  telegraph  company  in  an  action  ex  contractu 
for  failing  to  send  or  deliver  a  message.  The  action  to  warrant 
the  allowance  of  exemplary  damages  would  have  to  be  ex  delicto 
for  its  negligence.  The  common-law  doctrine,  however,  has  been 
done  aw'ay  with  in  those  states  which  have  abolished  by  statute  the 
distinction  between  forms  of  action.  Such  is  the  case,  for  instance, 
in  Texas.  "If  the  facts  stated  show  a  breach  of  contract,  and  also 
that  the  breach  is  of  such  a  character  as  to  authorize  a  suit  as  for  a 
tort,  all  the  damages  recoverable  for  the  thing  done  or  committed, 
either  in  an  action  ex  delicto  or  ex  contractu,  may  be  recovered  in 
the  one  suit."  ^^* 

121  Be^nsley  v.  Telegraph  Co.,  39  Fed.  ISl;  American  Unicn  Tel.  Co.  v. 
Daugbtery,  89  Ala.  191,  7  South.  660;  W.  U.  Tel.  Co.  v.  Heudersou,  89  Ala. 
510,  7  South.  419;  McAllen  v.  Telegraph  Co.,  70  Tex.  243,  7  S.  W.  715;  West 
V.  Telegraph  Co.,  39  Kan.  93,  17  Pac.  807. 

122  70  Tex.  243.  7  S.  W.  715. 

123  39  Kan.  93,  17  Pac.  807. 

124  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Levy,  59  Tex.  547;  Stuart  v.  Telegraph  Co.. 
GO  Tex.  580.  18  S.  W.  351. 


§  125)         DAMAGES  FOR  DEATH  BY  WKONGFUL  ACT.  297 

CHAPTER   XII. 

DAilAGES  FOR  DEATH  BY  WRONGFUL  ACT. 

125.  The  Rxile  at  Common  Law. 

126.  Damages  in  Statutoiy  Action— Pecuniary  Losa. 

127.  No  Damages  for  Solatium. 

128.  Exemplaiy  Damages. 

129.  No  Damages  for  Injury  to  Deceased. 

130.  Medical  and  Funeral  Expenses. 

131.  Meaning  of  "Pecuniary." 

132.  Prospective  Pecuniaiy  Losses. 

133.  Future  Care  and  Suppoi-t. 
134-135.  Future  Services. 

136.  Prospective  Gifts. 

137.  Prospective  Inheritance. 

138.  Evidence  of  Pecuniary  Condition  of  Beneficiaries. 

139.  Expectation  of  Life— Life  Tables. 

140.  Interest  as  Damages. 

141.  Reduction  of  Damages. 

142.  Discretion  of  Jury. 

143.  Nominal  Damages. 

144.  Allegation  of  Damages. 

THE  RULE  AT  COMMON  LAW. 

135.  At  common  law  no  civil  action  could  be  maintained 
for  w^rongfully  causing  the  death  of  a  human  being. 

History  of  Rule. 

In  1G06,  in  Higgins  v.  Butcher/  where  the  defendant  had  assaulted 
and  beaten  the  plaintiff's  wife,  from  which  she  died,  it  was  held 
that  the  plaintiff  could  not  recover.  All  the  case  decided  was  that, 
where  the  person  to  whom  a  wrong  is  done  dies,  the  action  dics.- 
The  question  was  not;  raised  again  in  England  until  1808,  when,  in 
Baker  v.  Bolton,^  Lord  Ellcnborough  laid  down  his  famous  prop- 
osition that,  "in  a  civil  court,  the  death  of  a  human  being  cannot  be 
complained  of  as  an  injury."      The  law  was  extended  in  Osborne  v. 

1  Ycl.  89.  2  Till'.   Dualli  Wruiigl'.  Act,  c.  L  o  1   Camp.   193. 


298  DAMAGES    FOR    DEATH    DY    WRONGFUL    ACT.  (Ch.    12 

Gillott,*  by  holding  that,  while  a  master  can  sue  for  injury  done 
his  servant  by  wrongful  act  or  negligence,  whereby  the  service  of 
the  servant  is  lost  to  his  master,  still  if  the  injury  result  in  the 
servant's  death,  the  master's  compensation  is  gone,'*  The  early 
American  cases  were  not  in  accord  with  Baker  v.  Bolton."  The 
common-law  rule,  however,  has  been  unanimously  accepted  by  the 
courts  of  the  various  states  and  of  the  United  States.'^ 

Reason  of  Rule. 

None  of  the  many  reasons  assigned  for  the  rule  has  been  gener- 
ally accepted  as  satisfactory.  In  England  it  has  been  urged  that 
the  rule  is  based  on  the  merger  of  the  wrong  resulting  in  death 
into  the  felony  involved.  The  sufficiency  of  this  reason  has  been 
denied  in  England,  and  in  America  the  docti'ine  has  been  generally 
repudiated.^  Forfeiture,"  as  an  explanation,  is  as  objectionable.^* 
"Actio  personalis  moritur  cum  persona"  is  a  restatement,  and  not 
an  explanation,  of  the  rule.  Moreover,  it  does  not  apply  to  any  one 
not  a  party  to  the  action,  as  the  master,  parent,  or  husband.^  ^     Pub- 

*  L.  11.  S  Exch.  88. 

B  But,  AThere  death  does  not  at  once  ensue,  the  person  entitled  to  the  serv- 
ices of  the  one  injured  may  recover  for  the  loss  accruing  between  the  injury 
and  the  death,  and  such  action  is  not  barred  by  the  death.  Hyatt  v.  Adams. 
10  Mich.  ISO. 

8  Tiff.  Death  Wrongf.  Act,  §  6;  Cross  v.  Guthery  (1T&4)  2  Root,  90;  Ford 
v.  Monroe  (1838)  20  Wend.  210;  Plummer  v.  Webb  (182.5)  1  Ware,  75,  Fed. 
Gas.  No.  11,234;  Carey  v.  Railroad  Co.  (1S18)  1  Cush.  475.  See  Palfrey  \. 
Railroad  Co.,  4  Allen,  55;  Eden  v.  Railroad  Co.  (1853)  14  B.  Mon.  105;  .Tames 
v.  Christy  (1853)  18  Mo.  102;  Shields  v.  Yonge,  15  Ga.  349;  Chick  v.  Railroad 
Co.,  57  Ga.  357;  McDowell  v.  Railroad  Co.,  60  Ga.  320;  Sullivan  v.  Union  Pac. 
R.  Co.,  3  Dill.  334,  Fed.  Cas.  No.  13,599;  McGovern  v.  Railroad  Co.,  07  N.  Y. 
417;   Cutting  v.  Sea  bury,  1  Spr.  522,  Fed.  Cas.  No.  3,521. 

~  Connecticut  Mut.  Life  Ins.  Co.  v.  New  York  &  N.  H.  R.  Co.,  25  Conn.  205; 
City  of  Eureka  v.  Merrifield,  53  Kan.  794,  37  Pac.  113;  Green  v.  Railroad  Co., 
28  Barb.  9;  Insurance  Co.  v.  Brame,  95  U.  S.  754;  Asher  v.  Cabell,  1  C.  C.  A. 
693,  50  Fed.  818-824;  The  Corsair,  145  U.  S.  335-344,  12  Sup.  Ct.  949;  Hyatt 
v.  Adams,  10  Mich.  180-185  (collecting  cases);  Tiff.  Death  Wrongf.  Act,  §§ 
11,  13,  14  (collecting  cases). 

8  Hyatt  V.  Adams.  16  Mich.  ISO;  Caroy  v.  Railroad  Co.,  1  Cush.  475;  2 
Bish.  Crim.  Law  (2d  Ed.)  §  270. 

9  Shields  v.  Yonge,  15  Ga.  349. 

10  Orop?o  V.  Railroad  Co.,  .50  N.  .7.  Law.  317,  13  Atl.  233. 

11  Green  v.  Railroad  Co.,  *41  N.  Y.  294,  28  Barb.  9. 


§    125)  THE    RULE    AT    COMMON    LAW.  299 

lie  policy,  that  enlightened  nations  are  unwilling  to  set  a  price  on 
human  life,  that  the  value  of  life  is  too  great  to  be  estimated  in 
mone}',  or  that  the  law  refuses  to  recognize  the  interest  of  one  per- 
son in  the  death  of  another,  are  all  unsatisfactory,  if  not  absurd, 
reasons.'-  It  is  of  no  practical  utility  to  search  further  for  the 
reason  of  the  rule.^^  The  rule  is  barbarous,  and  rests  on  adjudica- 
tion, in  fact.^* 

Except  as  modified  by  statute,  the  common-law  rule  as  to  dis- 
charge by  death  remains  in  force.  But,  almost  universally,  direct 
legislation  has  practically  abrogated  it  by  creating  a  new  action. 
The  English  statute  (Lord  Campbell's  Act)  for  compensating  the 
families  of  persons  killed  by  accident  w^as  passed  in  184G.  Statutes 
similar  to  this  have  been  passed  by  most  of  the  states  of  the  United 
States  of  America  and  by  many  of  the  provinces  of  Canada.^ ° 
These  acts  do  not  repeal  nor  create  an  exception  to  the  common 
law^  "A  totally  new  action,"  said  Lord  Blackburn,^*'  "is  given 
against  the  person  who  would  have  been  responsible  to  the  deceased 
if  the  deceased  had  lived, — an  action  which  *  *  *  is  new  in  its 
species,  new  in  its  quality,  new  in  its  principle,  in  every  w^ay  new, 
and  which  can  be  brought  by  a  person  answering  the  description 
of  the  widow,  parent,  or  child  who,  under  such  circumstances,  has 
suffered  pecuniary  loss." 

The  constitutionality  of  the  various  acts  giving  a  remedy  in  case 
of  death  has  not  been  seriously  questioned,^  ^  but  generally  sustained, 

laOsborn  v.  Gillett,  L.  R.  8  Exch.  88;  Smith,  Neg.  (2d  Ed.)  25G;  Hyatt  v. 
Adams,  IG  Mich.  180;  Connecticut  Mut.  Life  Ins.  Co.  v.  New  Yorii  &  N,  H. 
R.  Co.,  25  Conn.  205. 

^3  Leonard,  J.,  in  Green  v.  Railroad  Co.,  *41  N.  Y.  294. 

14  Pol.  Torts,  53.  The  rule  rests  more  on  artificial  distinction  than  any  real 
principle,  and  savors  more  of  the  logic  of  the  schoolmen  than  of  common 
sfn.se.     llyntt  v.  Adams,  1(5  Mich.  ISO. 

10  Tiff.  Wrongf.  Act,  p.  xvii.  (analytical  table  of  statutes). 

16  Seward  v.  The  Vera  Cruz,  10  App.  Cas.  50;  Blake  v.  Railway  Co.,  IS  Q. 
B.  93,  21  Law  J.  Q.  B.  233;  Whitford  v.  Railroad  Co.,  23  N.  Y.  4G5;  Little- 
wood  V.  Mayor,  etc.,  S9  N.  Y.  24;  Rus.sell  v.  Sunbury,  37  Ohio  St.  372;  Ham- 
ilton V.  Jones,  125  Ind.  17G,  25  N.  E.  192;  Hulbort  v.  City  of  Topeka,  ;>4  Fed. 
510;    Mason  v.  Railroad  Co.,  7  Utah,  77,  24  Pac.  79(5. 

IT  Southwestern  R.  Co.  v.  Paulk.  24  Ga.  350;  Hoard  of  Internal  Improve- 
ment for  Shelby  Co.  v.  Scearce,  2  Uuv.  (Ky.)  57»J;  Georgia  Raili'oad  &  Banking 
Co.  V.  Oaks,  52  Ga.  410. 


300  DAMAGES    FOR   DEATH    BY    WRONGFUL    ACT.  (Cll.    12 

even  M'liere  the  remedy  was  made  to  apply  exclusively  to  railroad 
corporations.^^ 

The  authorities  are  about  equally  divided  as  to  whether  these 
statutes  are  to  be  liberally  or  strictly  construed.  On  the  one  hand, 
it  is  said  that  they  are  remedial,  and  should  consequently  receive 
a  liberal  construction.^^  On  the  other  hand,  it  is  said  that  they 
are  in  derogation  of  the  common  law,  and  should  consequently  re- 
ceive a  strict  interpretation.^" 


DAMAGES  IN  STATUTORY  ACTION— PECUNIARY  LOSS. 

126.  In  an  action  under  Lord  Campbell's  act,  or  similar 
statutes,  the  daniag:es  are  measured  by  the  pecun- 
iary loss  resulting  to  the  beneficiaries  of  the  ac- 
tion from  the  death,  unless  the  statute  prescribed 
a  diJSferent  measure. 

The  distinguishing  feature  of  Lord  Campbell's  act,  and  of  acts 
similar  to  it  in  respect  to  damages,  is  that  the  damages  to  be  re- 
covered are  solely  such  as  result  from  the  death  to  the  persons  for 
whose  benefit  the  action  is  given.  This  feature  is  common  to  most, 
but  not  all,  of  the  acts  in  force  in  the  United  States  and  Canada.-^ 
The  amount  of  damages  recoverable  depends,  of  course,  somewhat 
upon  the  language  of  the  statute  under  which  the  action  is  brought 
But  in  spite  of  differences  in  phraseology,  it  is  believed  that  the 
principles  applicable  in  the  measure  of  damages  under  all  these 
acts  is  the  same,  viz.  that  the  damages  are  measured  by  the  pecunia- 
ry loss  resulting  to  the  beneficiaries  of  the  action  from  the  death.^^ 
This  statement,  however,  is  subject  to  the  qualification  that  certain 

18  Boston,  C.  &  M.  R.  v.  State,  32  N.  H.  215;  Schoolcraft's  Adm'r  v.  Louis- 
ville &  N.  R.  Co.,  92  Ky.  23.3,  17  S.  W.  567.  Compare  Smith  v.  Railroad  Co., 
75  Ala.  449.  And,  generally,  see  Denver,  S.  P.  &  P.  Ry.  Co.  v.  Woodward,  4 
Colo.  162;   Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Pounds,  11  Lea  (Tenn.)  127. 

19  Tiff.  Death  Wrongf.  Act,  c.  2,  §  32,  collecting  cases. 
2  0  Id. 

21  Tiff.  Death  Wrongf.  Act,  c.  9,  where  the  statutes  are  carefully  collated. 
2  2  Walker  v.  Railway  Co.  (Mich.)  U2  N.  W.  1032. 


§    127)  NO    DAMAGES    FOR    SOLATIUM.  301 

of  the  acts  authorize  exemplary,  in  addition  to  compensatory,  dam- 
ages. 

Many  statutes  provide  that  the  amount  that  may  be  recovered 
as  damages  shall  not  exceed  a  certain  sum.  This  sum  is  limited 
to  $5,000  in  Colorado,  Connecticut,  Illinois,  Maine,  Massachusetts, 
Minnesota,  Missouri,  Nebraska,  New  York,  Oregon,  Wisconsin,  and 
Wyoming;  to  §7,000  in  New  Hampshire;  to  §10,000  in  the  District 
of  Columbia,  Indiana,  Kansas,  Ohio,  Oklahoma,  Utah,  Virginia,  and 
West  Virginia;  and  to  $20,000  in  Montana.  In  New  Brunswick 
the  reasonable  expectation  of  benefit  from  the  continuance  of  the 
life  is  confined  to  a  period  not  exceeding  10  years.  With  these  ex- 
ceptions, the  statutes  impose  no  limit.* 

NO  DAMAGES  TOR  SOLATIUM. 

127.  Damages    cannot    be    recovered    as    a    solatium    for 
"wounded  feelings. 

In  ]31ake  v.  Midland  Ry.  Co.,-^  which  is  perhaps  the  leading  case 
upon  the  measure  of  damages,  Coleridge,  J.,  said:  "The  title  of 
this  act  may  be  some  guide  to  its  meaning;  and  it  is  'An  act  for 
compensating  the  families  of  persons  killed,'  not  for  solacing  their 
wounded  feelings;''  and  in  that  case  it  was  held  that,  in  assessing 
damages,  the  jury  could  not  take  into  consideration  the  mental 
sufferings  of  the  plaintiff  for  the  loss  of  her  husband,  and  that,  as 
the  damages  exceeded  any  loss  sustained  by  her  admitting  of  a 
pecuniary  estimate,  they  must  be  considered  excessive.  The  New 
York  act,  and  some  others  which  have  been  nwdeled  upon  it,  re- 
quire the  damages  to  be  assessed  with  reference  to  the  "pecuniary" 
injuries.  But,  irrespective  of  the  use  of  "pecuniary"  in  the  various 
enactments,  the  construction  adopted  in  Blake  v.  Midland  Ry.  Co. 
has  been  almost  universally  followed,  and  it  is  held  that  the  jury 
are  confined  to  the  pecuniary  loss,  and  that  nothing  can  be  allowed 
by  way  of  solatium  for  the  grief  and  woimdt^  feelings  of  the  bene- 
ficiaries,^* or  to  compensate  them  for  the  loss  of  society  or  of  com- 

*  See  Tiff.  Death  Wrongf.  Act.  p.  xvil.  (annlytieal  table  of  statutes). 
23  18  Q.  B.  93;   21  Law  J.  Q.  B.  2X3;  IG  Jur.  502. 

'-:^  Tliis  principle  is  expresslj'  declared  in  nearly  every  case  in  wliich  the 
measure  of  damages  Is  discussed.     It  is  suflident  to  cite  tlie  followinf::     II- 


302  DAMAGES    FOR    DKAIII    BY    WRONGFUL    ACT.  (Cll.    1- 

panionship  which  they  have  suilered.^"^  A  different  rule  was  once 
declared  in  Indiana, ^"^  and  was  followed  until  recently  in  Calif ornia,^^ 

liuois  Cent.  R.  Co.  v.  Barron.  5  Wall.  95;  Id.,  1  Biss.  412,  Fed.  Cas.  No.  1,052,  1 
Biss.  453,  Fed.  Cas.  No.  1,053;  Wbltou  v.  Railroad  Co.,  2  Biss.  282,  Fed.  Cas. 
No.  17,5ii7;  Id.,  13  AVall.  270;  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark. 
350;  City  of  Chicago  v.  Major,  18  111.  349;  Conant  v.  Griffin,  48  111.  410;  City 
of  Chicago  v.  Scholten,  75  111.  468;  Chicago  City  Ry.  Co.  v.  Gillam,  27  111. 
App.  3SG;  Barley  v.  Railroad  Co.,  4  Biss.  430,  Fed.  Cas.  No.  997;  Brady  v. 
Chicago,  4  Biss.  448,  Fed.  Cas.  No.  1,796;  Kansas  Pac.  Ry.  Co.  v.  Cutter,  19 
Kan.  S3;  State  v.  Baltimore  &  O.  R.  Co.,  24  Md.  84;  Mynniug  v.  Railroad 
Co.,  59  Mich.  257,  26  N.  W.  514;  Hutchins  v.  Railway  Co.,  44  Minn.  5,  46  N. 
W.  79;  Collins  v.  Davidson,  19  Fed.  83;  Hardy  v.  Railway  Co.,  36  Fed.  657; 
Schaub  V.  Railroad  Co.,  106  Mo.  74,  16  S.  W.  924;  McGowan  v.  Steel  Co. 
(Mo.  Sup.)  16  S.  W.  236;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson,  1  C.  C.  A.  25, 
48  Fed.  57;  Besenecker  v.  Sale,  S  Mo.  App.  211;  Anderson  v.  Railroad  Co., 
35  Neb.  95,  52  N.  W.  840;  Oklfield  v.  Railroad  Co.,  14  N.  Y.  310;  Tilley  v. 
Railroad  Co.,  29  N.  Y.  252,  24  N.  Y.  471;  Wise  v.  Teerpeuuiug,  8  N.  Y.  Leg. 
Obs.  153;  Goss  v.  Railroad  Co.,  50  Mo.  App.  614;  Storrie  v.  Marshall  (Tex.  Civ. 
App.)  27  S.  W.  224.  The  court  having  charged,  in  the  language  of  the  Code, 
that  a  fair  and  just  compensation  could  be  recovered  for  the  pecuniary  in- 
juries resulting  to  the  persons  for  whose  benefit  the  action  was  brought,  a 
refusal  to  charge  additionally  that  plaintiff  cannot  recover  for  the  suffering 
of  the  child  or  for  his  own  mental  suffering,  and  that  the  jury  cannot  award 
punitive  damages,  is  reversible  error,  as  such  principles  do  not  sufticiently  ap- 
pear in  the  instruction  given.  Dorman  v.  Railroad  Co.  (City  Ct.  Brook.)  1  N. 
Y.  Supp.  334;  Steel  v.  Kurtz,  28  Ohio  St.  191;  Au  v.  Railroad  Co.,  29  Fed.  72; 
Penusylvauia  R.  Co.  v.  Zebe,  33  Pa.  St.  318;  Cleveland  &  P.  R.  Co.  v.  Rowan. 
66  Fa.  St.  393;  Pennsylvania  R.  Co.  v.  Butler,  57  Pa.  St.  335;  March  v. 
AValker,  48  Tex.  375;  Southern  Cotton  P.  &  M.  Co.  v.  Bradley,  52  Tex.  587; 
Galveston  v.  Barbour.  62  Tex.  172;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Matula, 
79  Tex.  577,  15  S.  W.  573;  Taylor,  B.  &  H.  Ry.  Co.  v.  Warner,  84  Tex.  122, 
19  S.  W.  449,  and  20  S.  W.  823;  McGown  v.  Railroad  Co.,  85  Tex.  289,  20  S.  W. 
80;  Webb  v.  Railway  Co.,  7  Utah,  17,  24  Pac.  616;  Hyde  v.  Railway  Co..  7 
Utah,  356,  26  Pac.  979;  Weils  v.  Railway  Co.,  7  Utah,  482,  27  Pac.  688;  Need- 
ham  V.  Railroad  Co.,  38  Vt.  294;  Potter  v.  Railway  Co.,  21  Wis.  372.  Under 
the  Scotch  law  the  jury  may  administer  a  solatium.  Patterson  v.  Wallace,  1 
Macq.  H.  L.  Cas.  748. 

2  5  Gillard  v.  Railway  Co.,  12  L.  T.  356;  Schaub  v.  Railroad  Co.,  100  Mo.  74, 
16  S.  W.  924;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson,  1  C.  C.  A.  25,  48  Fed.  57; 
Green  v.  Railroad  Co.,  2  Abb.  Dec.  277,  affirming  32  Barb.  27;  Taylor,  B.  & 
H.  Ry.  Co.  V.  Warner,  84  Tex.  122, 19  S.  W.  449,  and  20  S.  W.  823;   McGown  v. 

2  6  See  note  26  on  following  page. 
2  7  See  note  27  on  following  page. 


§    127)  NO    DAMAGES    FOR    SOLATIUM.  303 

but  these  states  are  no  longer  exceptions  to  the  common  rule.  In 
Quebec,  also,  it  was  formerly  held  that  damages  could  be  allowed 
as  a  solatium, 2^  but,  under  the  later  decisions,  it  is  held  that  the 
damages  must  be  confined  to  the  pecuniary  loss.^^     In  Virginia, ^° 

Railroad  Co.,  85  Tex.  2Sy,  20  S.  W.  SO;  Pepper  v.  Southern  Pac.  Co., 
105  Cal.  389,  38  Pac.  974;  Gulf,  C.  &  S.  F.  Ky.  Co.  v.  Finley  (Tex.  Civ.  App.) 
32  S.  W.  51,  and  cases  in  preceding  note.  In  an  action  by  the  husband,  the 
court  charged  that  damages  should  be  given  as  a  pecuniary  compensation,  the 
jury  measuring  plaintiff's  loss  by  a  just  estimate  of  the  wife's  services  and 
companionship;  that  is,  by  their  value  in  a  pecuniary  sense,  nothing  being  al- 
lowed for  plaintiff's  wounded  feelings.  Eeld,  no  error,  companionship  evi- 
dently being  intended  to  express  service.  Pennsylvania  R.  Co.  v.  Goodman,  G2 
Pa.  St.  329. 

26  Long  V.  Morrison,  14  Ind.  595.  This  case,  so  far  as  it  holds  that  dam- 
ages for  anything  but  the  pecuniary  injury  can  be  recovered,  was  disapproved 
in  Jeffersonville  R.  Co.  v.  Swayne's  Adm'r,  2G  Ind.  477.  Louisville,  N.  A.  & 
C.  Ry.  Co.  V.  Rush,  127  Ind.  545,  2G  N.  E.  1010.  See,  also,  Ohio  &  M.  R.  Co.  v. 
Tindall,  13  Ind.  366. 

27  Beeson  v.  Mining  Co.,  57  Cal.  20;  IMcKeever  v.  Railroad  Co.,  59  Cal.  294; 
Cook  V.  Railroad  Co.,  GO  Cal.  604;  Nehrbas  v.  Railroad  Co.,  62  Cal.  320;  Cleary 
V.  Railroad  Co.,  76  Cal.  240,  18  Pac.  269.  In  Morgan  v.  Southern  Pac.  Co., 
95  Cal.  510,  30  Pac.  603,  all  the  cases  are  reviewed,  and  it  is  there  held,  in  ac- 
cordance with  the  general  rule,  that  the  recovery  is  limited  to  the  actual  pe- 
cuniary loss.  Muuro  v.  Railroad  Co..  84  Cal.  515,  24  Pac.  303.  Uuder  the 
original  California  act  exemplary  damages  were  expressly  provided  for.  My- 
ers V.  San  Francisco.  42  Cal.  215. 

2  8  Ravary  v.  Railway  Co.,  G  Low.  Can.  Jur.  49,  reversing  1  L.  C.  Jur. 
280.  The  decision  rested  on  the  ground  tliat  the  right  to  recover  such  dam- 
ages existed  uuder  the  civil  law,  and  was  not  abolished  by  the  statute. 

i:»  Canadian  Pac.  Ry.  Co.  v.  Robinson,  14  Can.  Sup.  Ct.  105,  reversing  2  M. 
L.  R.  Q.  B.  25;  City  of  Montreal  v.  Labelle,  14  Can.  Sup.  Ct.  741.  See,  also. 
Provost  V.  Jackson,  13  L.  C.  Jur.  170;  Ruest  v.  Railway  Co.,  4  Quebec  L.  R. 
181;    Grand  Trunk  Ry.  Co.  v.  Ruel,  1  Leg.  News,  129. 

30  Baltimore  &  O.  R.  Co.  v.  Xoell,  32  Grat.  304;  Matthews  v.  Warner,  20 
Grat.  570.  The  court  in  the  latter  case  rests  its  decision  on  the  language  of  the 
act  which  provides  that  the  jury  "may  award  such  damages  as  to  it  may  seem 
fair  and  just,"  and  which  it  says  diifers  from  that  of  other  states  in  not  ex- 
pressly or  Impliedly  limiting  the  damages  to  pecuniary'  loss.  Christian,  J., 
says:  "I  think  it  is  manifest  that  the  legislature  intended,  as  In  Kentucky. 
Iowa,  Connecticut,  and  California  (which  states  are  exceptional  to  tlie  Eng- 
lish statute),  to  allow  the  jury  In  such  cases  to  award  punitive  and  exoniplai-y 
damages."  It  is  to  be  observed,  however,  that  the  Connecticut  statute  pro- 
vides for  the  survival  of  the  original  cause  of  a<tiiin;    that  tlu"  Keiitiiiky  stal- 


o04  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Cb.    12 

liowevcr,  tlie  jury  are  not  confined  to  the  pecuniary  loss,  but  may 
give  damages  for  the  loss  of  society,  and  by  way  of  solace  and  com- 
fort for  the  sorrow,  suffering,  and  mental  anguish  occasioned  by  the 
death.  In  Alabama,^ ^  also,  under  the  "Act  to  prevent  homicides,'^ 
a  different  rule  seems  to  prevail.  The  general  rule  obtains  also 
in  states  like  lowa,*^  Oregon,^^  and  Washington,^*  where  the  meas- 
ure of  damages  is  the  pecuniary  injury  to  the  estate. 

EXEMPLARY  DAMAGES. 

128.  Exemplary  or  punitive  damages  cannot  be  recovered, 
unless  expressly  authorized  by  statute. 

It  follows  from  the  rule  that  damages  must  be  assessed  with 
reference  to  the  pecuniary  loss  to  the  beneficiaries  that  exemplary 
or  punitive  damages  cannot  be  given.^'     They  are,  however,  ex- 

ute  expressly  provides  for  punitive  damages;  and  that  in  Iowa  and  California 
the  damages  are  held  to  be  limited  to  the  pecuniary  injury.  Bertha  Zinc  Co. 
V.  Black's  Adm'r,  88  Va.  303,  13  S.  E.  452;  Simmons  v.  McConnoll's  Adm'r. 
86  Va.  494,  10  S.  E.  838.  See,  also,  Turner  v.  Railroad  Co.  (W.  Va.)  22  S.  E. 
83. 

31  Savannah  &  M.  R.  Co.  v.  Shearer,  .58  Ala.  G72;  South  &  North  Alabama 
R.  Co.  V.  Sullivan,  59  Ala.  272.  See  East  Tennessee,  V.  &  G.  R.  Co.  v.  King, 
81  Ala.  177,  2  South,  152.  The  act  provides  for  the  recovery  of  "such  dam- 
ages as  the  jury  may  assess."  Code  Ala.  §  2.589.  The  court  has  said  that  the 
purpose  of  the  act  is  a  prevention  of  homicide,  and  that  this  purpose  it  accom- 
plishes by  such  pecuniary  mulct  as  the  jury  deem  just.  Richmond  &  D.  R. 
Co.  V.  Freemnn.  97  Ala.  289,  11  South.  800. 

3  2  Donaldson  v.  Railroad  Co.,  18  Iowa,  280;  Kelley  v.  Railroad  Co.,  48  Fed. 
GG3. 

33  Holmes  v.  Railway  Co.,  5  Fed.  523;  Carlson  v.  Railway  Co.,  21  Or.  450, 
28  Pac.  497;  Ladd  v.  Foster,  31  Fed.  827. 

3  4  Klepsch  V.  Donald.  4  AVash.  436,  30  Pac.  991. 

3  5  See  cases  cited  in  note  24,  supra,  and  note  44,  infra.  See,  also,  Atrops  v. 
Costello.  3  Wash.  149,  35  Pac.  620.  Rev.  St.  Mo.  1889,  §§  4426,  4427,  author- 
izing the  jury  to  give'  such  damages,  not  exceeding  $5,000,  as  they  may  deem 
fair,  looking  to  the  necessary  injury  to  the  survivors  and  the  circumstances 
of  the  wrongful  act,  permits  exemplary  damages  when  such  act  was  wanton 
or  malicious.  Haehl  v.  Railroad  Co.,  119  Mo.  325,  24  S.  W.  737.  See,  also, 
Kansas  City,  M.  &  B.  R.  Co.  v.  Sanders,  98  Ala.  293,  13  South.  57;  Richmond 
&  D.  R.  Co.  V.  Freeman,  97  Ala.  289,  11  South.  800. 


§    128)  EXEMPLARY    DAMAGES.  305 

pressly  authorized  by  the  acts  of  Arizona,  Kentucky,  Missouri,  Ne- 
vada, Texas,  and  Washington.  In  Connecticut,^^  where  the  right 
of  action  of  the  party  injured  surTives;  in  Tennessee,^ ^  under  the 
peculiar  statutes  of  that  state;  and  in  Alabama,^*  under  the  "Act 
to  prevent  homicides," — they  may  be  given.  It  seems  that  they 
may  also  be  given  in  Virginia.""  under  the  anomalous  construction 
there  adopted.  But,  even  7\here  exemplary  damages  are  authoriz- 
ed, they  are  not  to  be  given  in  every  case  where  a  recovery  of  pecun- 
iary damages  would  be  proper.***  Thus,  in  Kentucky,*^  the  statute 
confines  them  to  cases  of  "willful  neglect";  and  in  Arizona  and 
Texas  *^  to  cases  of  "willful  act  or  omission  or  gross  negligence  of 

3  6  Murphy  v.  Railroad  Co.,  29  Conn.  49G. 

37  Haley  v.  Railroad  Co.,  7  Baxt.  239;  Kansas  City,  Ft.  S.  &  M.  R.  Co.  v. 
Daughtry,  88  Tenn.  721,  13  S.  W.  689. 

3  8  See   note   31,   supra. 

3  0  Matthews  v.  Warner,  29  Grat.  570.     Aud  see  note  30,  supra. 

*o  Under  the  statute  which  provides  that  the  jury  may  give  such  damages, 
"peduniaiy  and  exemplary,"  as  may  to  thom  seem  just,  damages  resulting 
from  the  negligence  of  defendant,  free  from  moral  or  legal  wrong  amounting 
to  willfulness,  are  limited  to  actual  pecuniai-y  loss.  Klepsch  v.  Donald,  4 
Wash.  436,  30  Pac.  991. 

<i  Gen.  St.  Ky.  c.  57,  §  3.  Punitive  damages  may,  but  need  not,  be  given. 
It  is  error  to  instruct  the  juiy  that  they  ought  to  award  punitive  damages. 
Kentucky  Cent.  R.  Co.  v.  Gastineau's  Adm'r,  83  Ky.  119;  Louisville  & 
X.  R.  Co.  V.  Brooks'  Adm'x,  Id.  129.  See,  also,  Chiles  v.  Drake,  2  Mete. 
(Ky.)  14€;  Louisville,  C.  &  L.  R.  Co.  v.  Mahony's  Adm'x,  7  Bush,  235.  Where 
a  brakeman  was  killed  by  the  willful  negligence  of  a  railroad  company,  a 
verdict  of  $10,000  held  not  so  excessive  as  to  indicate  that  the  juiy  were 
influenced  by  passion  or  pi-ejudice.  Louisville  &  N.  R.  Co.  v.  Brooks'  Adm'x, 
83  Ky.  129.  A  verdict  of  !fl5,000  is  not  excessive  for  the  death  of  a  healthy 
and  intelligent  young  man,  29  years  old,  who  was  earning  $2.50  a  day,  and 
who  was  considered  one  of  the  best  workmen  in  the  company's  service. 
Louisville  &  N.  R.  Co.  v.  ShiveU's  Adm'r  (Ky.)  18  S.  W.  M4. 

*2  Sayles'  Civ.  St.  art.  2901.  This  section  is  based  on  Const,  art.  16,  g  26. 
The  earlier  constitutional  provision  (Const.  1869,  art.  12,  §  30)  did  not  contain 
the  words  "gross  neglect."  See  Houston  &  T.  C.  Ry.  Co.  v.  Baker,  57  Tox. 
419.  The  constitutional  provisions  did  not  repeal  the  earlier  act,  but  gave 
tbe  right  to  exemplarj'  damages,  in  the  cases  named,  in  addition  to  compensa- 
tory damages.  March  v.  Walker,  48  Tox.  372;  Houston  &  T.  C.  Ry.  Co.  v. 
Moore,  49  Tex.  31;  Gohen  v.  Railroad  Co.,  2  Woods,  316,  Fed.  ('as.  No.  5,50(i; 
Houston  &  T.  C.  Ry.  Co.  t.  Bradlt'y,  45  Tex.  171.  Where  both  actual  and  cx- 
LVW  I) AM.— ii) 


306  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

the  defendant."     In  Missouri  *^  they  cannot  be  given  unless  there 
are  "aggravating  circumstances." 


NO  DAMAGES  FOR  INJURY  TO  DECEASED. 

129.  Damages  cannot  be  recovered  on  account  of  the  phys- 
ical or  mental  suffering  or  other  injury  to  the  de- 
ceased. 

Inasmuch  as  those  acts  do  not  transfer  the  right  of  action  of  the 
party  injured  to  his  personal  representative,  but  give  a  new  right 
of  action,  in  which  the  damages  are  to  be  assessed  with  reference 
to  the  injury  resulting  from  the  death  to  the  beneficiaries,  nothing 

emplary  damages  are  sougbt,  the  allegations  should  be  in  the  nature  of  two 
distinct  counts.     Galveston,  H.  &  S.  A.  R.  Co.  v.  Le  Gierse,  51  Tex.  189. 

4  3  Rev.  St.  Mo.  §  4427,  provides  that  the  jury  may  give  such  damages,  not 
exceeding  $5,000,  as  they  may  deem  fail-  and  just,  with  reference  to  the  neces- 
sary injury  resulting  from  such  death,  and  also  having  regard  to  tJie  mitigating 
or  aggravating  circumstances  attending  the  wiongful  act.  Owen  v.  Brock- 
schmidt,  54  Mo.  285;  Gray  v.  McDonald,  104  Mo.  303,  16  S.  W.  398.  What 
circumstances  Avill  mitigate  or  aggravate  is  a  question  of  law,  and,  if  any  such 
exist,  thev  should  be  pointed  out  by  proper  instructions.  Rains  v.  Railway 
Co.,  71  Mo.  164;  Nichols  v.  Winfrey,  79  Mo.  544.  A  general  instruction  that 
the  jury  should  have  regard  to  the  mitigating  and  aggravating  circumstances 
is  bad,  but,  if  there  are  no  mitigating  circumstances,  the  defendant  cannot 
complain  of  the  instruction  for  its  generality.  Nagel  v.  Railway  Co.,  75  Mo. 
653;  Smith  v.  Railway  Co.,  92  :\Io.  360,  4  S.  W.  129.  Such  an  instruction  is 
erroneous  where  there  are  no  aggravating  circumstances.  Stoher  v.  Railway 
Co.,  91  :Mo.  509,  4  S.  W.  389;  Parsons  v.  Railway  Co.,  94  Mo.  286.  6  S.  W. 
464.  Evidence  of  contributory  negligence  will  not  justify  an  instruction  based 
on  mitigating  circumstances.  McGowau  v.  Steel  Co.  (Mo.  Sup.)  16  S.  W.  236. 
See  Foppiano  v.  Baker,  3  Mo.  App.  560,  Append.  Where  there  are  no  aggravat- 
ing circumstances,  evidence  of  the  financial  condition  of  defendant  is  inadmis- 
sible. Morgan  v.  Durfee,  69  Mo.  469.  Rev.  St.  Mo.  §  4425,  provides  for  the 
forfeiture  and  payment  of  .'?5,000  absolutely  in  certain  cases.  Under  this  sec- 
tion, if  plaintiff  is  entitled  to  recover  at  all,  he  is  entitled  to  recover  for  the 
full  sum,— $5,000.  Mangan  v.  Foley,  33  Mo.  App.  250.  Where  the  liability 
arises  under  section  4425,  Rev.  St.,  an  instruction  that  the  jm-y  cannot  take 
into  consideration  the  anguish  or  suffering  of  the  deceased  or  of  the  plaintiff 
is  properly  refused.  Tobin  v.  Railway  Co.  (Mo.  Sup.)  18  S.  W.  996.  The  sum 
is  not  intended  as  a  penalty,  but  as  compensatory  damages  liquidated  by  the 
statute.     Coover  v.  Moore,  31  Mo.  574. 


^    129)  NO    DAMAGES    FOR    INJURY    TO    DECEASED.  307 

can  be  allowed  on  account  of  the  physical  or  mental  suffering,  or 
other  injury,  to  the  deceased.**  The  rule  is,  of  course,  otherwise 
under  the  acts  of  Connecticut,  where  the  original  right  of  action 
survives,*'*  and  in  New  Hampshire,  Tennessee,*^  and  New  Bruns- 

44  Blake  v.  Railway  Co.,  18  Q.  B.  93,  21  Law  J.  Q.  B.  2.J3;  Illinois  Cent.  R. 
Co.  V.  Barron,  5  Wall.  90;  Railroad  Co.  v.  Whitton,  13  Wall.  270;  Donald- 
son V.  Railroad  Co.,  18  Iowa,  280;  Dwyer  v.  Railway  Co.,  84  Iowa,  479,  51  N. 
W\  244;  Kelley  v.  Railroad  Co.,  48  Fed.  663;  Kansas  Pac.  Ry.  Co.  v.  Cutter, 
19  Kan.  83;  Oldfield  v.  Railroad  Co.,  14  N.  Y.  310;  Whitford  v.  Railroad  Co., 
23  N.  Y.  465,  469;  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St.  318;  Pennsylvania 
R.  Co.  V.  Henderson,  51  Pa.  St.  315;  Brady  v.  Chicago,  4  Biss.  448,  Fed.  Cas. 
No.  1,796;  Southern  Cotton  P.  &  M.  Co.  v.  Bradley,  52  Tex.  587;  Potter  v. 
Railway  Co.,  21  Wis.  372;   and  cases  cited  in  note  24,  supra. 

4  5  Gen.  St  Conn.  §§  1008.  1009.  The  measure  of  damages  appears  to  be 
the  same  as  if  the  action  had  been  brought  by  the  party  injured,  including 
punitive  damages.  Murphy  v.  Railroad  Co.,  29  Conn.  496,  30  Conn.  184.  Such 
seems  also  to  have  been  tlie  measure  of  damages  under  Acts  1853,  c.  74  (Gen. 
St  Conn.  1866,  tit  7,  c.  7,  §  544),  which  is  not  found  in  Gen.  St  Conn.  1888. 
Goodsell  V.  Railroad  Co.,  33  Conn.  51;  Waldo  v.  Goodsell,  33  Conn.  46z.  bee 
Lamphear  v.  Bucliingham,  Id.  237;    Carey  v.  Day,  36  Conn.  152. 

4  6  Code  Tenn.  §  3134,  provides  that  the  plaintiff  may  recover  for  the  mental 
and  physical  suffering,  loss  of  time  and  necessary  expenses  resulting  to  the 
deceased  from  the  personal  injuries,  and  also  the  damages  resulting  to  the 
parties  for  whose  benefit  the  action  survives  from  the  death.  This  section 
is  Acts  1883,  c.  180.  Before  this  act,  only  such  damages  were  recoverable 
as  the  deceased  might  have  recovered  if  he  had  lived  (Nashville  &  C.  R.  Co.  v. 
Smith,  9  Lea,  471;  East  Tennessee,  V.  &  G.  R.  Co.  v.  Toppins,  10  Lea,  58; 
Louisville  &  N.  R.  Co.  v.  Conley,  Id.  531;  Chicago.  St  L.  &  N.  O.  R.  Co.  v. 
Pounds,  11  Lea,  130;  Trafford  v.  Express  Co.,  8  Lea,  96;  East  Tennessee,  V. 
&  G.  R.  Co.  V.  Gurley,  12  Lea,  46),  though  the  earlier  cases  had  held  that  dam- 
ages for  the  loss  caused  by  the  death  wei-t-  also  recoverable  (Nashville  &  C. 
R.  Co.  V.  Prince,  2  Heisk.  580;  Nashville  &  C.  R.  Co.  v.  Smith.  6  Il(>isk.  174; 
Nashville  &  C.  R.  Co.  v.  Stevens,  9  Heisk.  12;  Collins  v.  Railroad  Co.,  Id.  841; 
Railroad  Co.  v.  Mitchell,  11  Heisk.  400).  Cf.  Louisville  cV:  N.  R.  Co.  v.  Burke, 
6  Cold.  45.  ,  Contributory  negligence  of  deceased  may  be  shown  in  mitiga- 
tion of  damages.  Louisville  it  N.  R.  Co.  v.  Burke.  6  Cold.  45;  Nashville  & 
C.  R.  Co.  V.  Smith,  6  Heisk.  174;  Louisville  &  N.  R.  Co.  v.  Howard,  90  Tenn, 
144,  19  S.  W.  116.  Deceased  was  57  year.s  old.  in  declining  health.  His 
monthly  earnings  were  iH25,  and  his  sufferings  had  not  been  extreme.  The 
negligence  of  dofc-ndant  was  not  gross,  and  there  was  evidom-e  of  contributory 
negligence.  Held,  that  a  verdict  of  $12,000  \v:is  excessive.  Snodgrass,  J., 
said:  "The  principal  intiuiry  is  not  what  is  iht  value  or  (he  life  taken.  It 
is  whether,  and  how  much,  negligence  was  displayed  in  taking  It.  and  wheth- 


oOS  DAMAGES    FOR    DEATH    BY    WUONGKUL    ACT.  (Ch.    12 

wick,  where  the  statutes  authorize  the  jury  to  consider  the  suffering 
of  the  deceased. 


MEDICAL  AND  FUNERAL  EXPENSES. 

130.  It  is  g-enerally,  but  not  universally,  held  that  com- 
pensation may  be  recovered  for  medical  and  funeral 
expenses. 

Since  the  damages  are  based  solely  upon  the  injury  which  results 
from  the  death,  it  would  logically  follow  that  the  expenses  of  nurs- 
ing, medical  attendance,  etc.,  which  result,  not  from  the  death,  but 
from  the  injury  causing  it,  cannot  be  recovered.  It  has  been  fre- 
quently held,  however,  in  actions  by  parents  for  the  death  of  minor 
children,  that  these  expenses  may  be  included.'*^  As  to  funeral  ex- 
penses, it  has  been  held  in  England  that  they  cannot  be  included.*^ 
"The  subject-matter  of  the  statute,"  says  Willes,  J.,  in  Dalton  v. 
South  Eastern  R.  Co.,  "is  compensation  for  injury  by  reason  of  the 
relative  not  being  alive."  In  that  case  the  action  was  for  the  bene- 
fit of  a  father  on  account  of  the  death  of  a  minor  son,  and  the  ver- 

er,  and  to  what  extent,  the  negligence  of  the  deceased  caused  or  contributed 
to  it,  and,  from  the  reasonable  and  just  compensation  to  be  given  upon  de- 
termining the  first  inquiiy  against  the  negligent  wrongdoer,  what  amount 
should  be  deducted  on  account  of  the  contributing  default  of  the  deceased." 
Louisville  &  N.  K.  Co.  v.  Stacker,  86  Tenu.  343,  G  Is  W.  784.  On  the  other 
hand,  ?S,000  damages  for  the  death  of  a  man  earning  $4  a  day,  of  industri- 
ous and  sober  habits,  with  an  expectation  of  lite  ot  31  years,  has  been  held 
not  excessive.  Tennessee  Coal  &  R.  Co.  v.  Roddy,  85  Tenn.  400,  o  S.  W.  286. 
And  where  deceased  was  careful,  and  the  defendant's  engineer  was  very  reck- 
less, it  was  held  that  a  verdict  for  $15,000  woukl  noi  be  disturbed.  Chesa- 
peake, O.  &  S.  W.  R.  Co.  V.  Hendricks,  88  Tenn.  710,  13  S.  W.  696,  14  S.  W. 
488. 

4T  Little  Rock  &  F.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;  Pennsylvania  Co.  v. 
LiUy,  73  Ind.  252;  Rains  v.  Railway  Co.,  71  Mo.  164;  Roeder  v.  Ormsby,  13 
Abb.  Prac.  334,  22  How.  Prac.  270;  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 
318;  Pennsylvania  R.  Co.  v.  Bantom,  54  Pa.  St.  495;  Cleveland  &  P.  R.  Co.  v. 
Rowan,  66  Pa.  St.  393;  Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  05;  Galveston 
V.  Barbour,  62  Tex.  172;  BruusAvig  v.  White,  70  Tex.  504,  8  S.  W.  85.  Hol- 
land V.  Brown,  35  Fed.  43,  contra. 

4  8  Dalton  V.  Railroad  Co.,  4  C.  B.  (N.  S.)  296,  4  Jur.  (N.  S.)  711,  27  Law  J. 
C.  P.  227.     See  Boulter  v.  Webster,  13  Wkly.  Rep.  289. 


§    i31)  MEANING    OF    "PECUNIARY."  309 

diet  was  reduced  by  the  amount  of  the  funeral  and  mourning  ex- 
penses which  the  father  had  paid.  In  the  United  States  funeral 
expenses  are  generally  held  to  be  a  legitimate  element  of  damages, 
at  least  when  paid  by  one  of  the  beneficiaries  who  was  under  obli- 
gation to  pay  them.*^  The  Minnesota  act  provides  that,  out  of  the 
money  recovered,  "any  demand  for  the  support  of  the  deceased,  and 
funeral  expenses,  duly  allowed  by  the  probate  court,  shall  be  first 
■deducted  and  paid."  ^° 

MEANING  or  "PECUNIARY." 

131.  The   term  "pecuniary  losses"  is  used  in  the  sense  of 
material,  as  distinguished  from,  sentimental,  losses. 

The  use  of  "pecuniary"  to  designate  the  kind  of  loss  for  which 
recovery  can  be  had  is  misleading,  for  the  damages  are  by  no  means 
confined  to  the  loss  of  money,  or  of  what  can  be  estimated  in  money. 
As  will  be  seen,  damages  are  recoverable  for  the  loss  of  the  serv- 
ices of  husband,  wife,  and  child,  and  also  for  the  loss  by  a  child 
of  the  care,  education,  and  counsel  which  he  might  have  received 
from  his  parents.  Th(»  word  has  been  used  rather  for  the  purpose 
of  excluding  from  the  recovery  damages  to  the  feelings  and  affec- 
tions than  of  confining  the  damages  strictly  to  those  injuries  which 
are  "pecuniaiy,"  according  to  the  ordinary  definition.  As  was 
observed  by  Denio,  J.,  in  Tilley  v.  Railroad  Co.  :^^  "The  word 
'pecuniary'  was  used  in  distinction  to  those  injuries  to  the  affections 
and  sentiments  which  arise  from  the  death  of  relatives,  and  which, 
though  painful  and  grievous  to  be  borne,  cannot  be  measured  or 

<9  Owen  V.  Brocksehiniclt.  rA  Mo.  2S5;  Murphy  v.  Railroad  Ck).,  8S  N.  Y. 
445  (affirming  Id.,  25  Ilun,  Mil);  Petrie  v.  Railroad  Co.,  29  S.  C.  303,  7  S.  K. 
515;  and  cases  cited  in  note  47,  supra.  In  Holland  v.  Brown,  supra,  it  was 
held  that  they  did  not  result  from  the  death.  In  Gay  v.  Winter,  34  Cal.  153, 
it  was  held  that  if  recoverable  they  must  be  specially  pleaded.  See  Bunyea 
V.  Railroad  Co.,  19  D.  C.  70.  Husband  may  recover  funeral  expenses  of  wife. 
<julf,  C.  &  S.  F.  R.  Co.  V.  Southwick  (Tex.  Civ.  App.)  30  S.  W.  592. 

60  This  does  not  make  the  fund  subject  to  all  debts  incurred  by  the  de- 
ceased for  the  support  of  himself  and  family,  but  only  to  such  as  were  in- 
■curred  in  consequence  of,  or  after,  the  injury.  State  v.  Probate  Court  of  Da- 
kota County,  51  Minn.  211,  53  N.  W.  403. 

til  24  .\.  Y.  -171;    29  X.  Y.  252. 


310  DAMAGKS    I'OR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

recompensLMi  by  mocey.  It  excludes,  also,  those  losses  which  re- 
sult from  the  deprivation  of  the  society  and  companionship,  which 
are  equally  incapable  of  being  defined  by  any  recognized  measure 
of  value."  The  meaning  would  be  better  expressed  by  "material," 
as  was  suggested  by  Patterson,  J.  A.,  in  an  opinion  in  which  he 
carefully  reviews  all  the  English  decisions."  The  construction 
placed  upon  the  word  by  the  courts  can  only  be  ascertained  by  an 
examination  of  the  various  rules  which  have  been  evolved  for  meas- 
uring the  damages,  and  which  differ,  according  as  the  action  i» 
brought  for  the  benefit  of  husband,  wife,  minor  child,  or  parent  of 
minor  child,  for  the  loss  of  services  or  support  to  which  the  bene- 
ficiary was  legally  entitled,  or  is  brought  for  the  benefit  of  a  person 
whose  damages  consist  only  in  the  loss  of  a  prospective  benefit  to 
which  he  was  not  legally  entitled. 

PROSPECTIVE  PECUNIARY  LOSSES. 

132.  Damages   may  be   recovered   for  the  loss  of  prospec- 
tive benefits: 

(a)  Which  plaintiff  is  legally  entitled  to  receive,  includ- 

ing: 

(1)  Future  care  and  support;  and 

(2)  Future  services. 

(b)  Which  it  is  reasonably  probable  plaintiff  -would  have 

received,  including: 

(1)  Prospective  gifts;  and 

(2)  Prospective  inheritance. 

The  loss  which  a  man  suffers  by  the  death  of  a  relative  may  be 
the  loss  of  something  which  he  was  legally  entitled  to  receive,  or 
may  be  the  loss  of  something  which  it  was  merely  reasonably  prob- 
able he  would  receive.     The  first  description  of  loss  is  principally  ■** 

62  Lett  v.  Railway  Co.,  11  Ont.  App.  1;   Patt.  Ry.  Ace.  Law,  §  401. 

68  But  not  exclusively.  Thus  where  the  deceased  had  covenanted  to  pay 
his  mother  an  annuity  during  their  joint  lives,  this,  of  course,  furnished  a 
basis  for  damages.  Rowley  v.  Railway  Co.,  L.  R.  8  Exch.  221,  42  Law  J. 
Exch.  153,  29  Law  T.  (N.  S.)  180.  And,  where  the  deceased  Avas  a  child  of  8, 
and  his  mother  lost  by  his  death  a  pension  of  $2  a  month,  which  under  tlie- 


§  133)  FUTURE  CARE  AND  SUPPORT,  311 

confined  to  a  husband's  loss  of  his  wife's  services,  a  wife's  loss  of 
her  husband's  support,  a  parent's  loss  of  the  services  of  a  minor 
child,  a  minor  child's  loss  of  the  support  of  a  parent.  But  the  stat- 
utes do  not  confine  the  benefit  of  the  action  to  husbands,  wives, 
minor  children,  and  parents  of  minor  children;  and  hence  a  person 
entitled  to  the  benefit  of  the  action  may  recover  damages  for  the 
loss  of  a  pecuniary  benefit  to  which  he  was  not  legally  entitled, 
but  which  it  is  reasonably  probable  he  would  have  received  except 
for  the  death.  The  second  description  of  loss  includes  the  loss  by 
the  beneficiary  of  any  pecuniary  benefit  which  he  might  reasonably 
have  expected  to  receive  during  the  lifetime  of  the  deceased  by  gif  1:, 
and  also  the  loss  of  any  accumulations  which  it  is  probable  that 
the  deceased  would  have  added  to  his  estate  had  he  lived  out  his 
natural  life,  and  which  the  beneficiary  would  probably  have  receiv- 
ed by  inheritance.  Thus  the  second  description  of  loss  may  be 
divided  into  (1)  losses  of  prospective  gifts,  and  (2)  losses  of  prospec- 
tive inheritances.  The  loss  sustained  by  a  husband,  wife,  minor 
child,  and  parent  of  a  minor  child  may  be  of  both  descriptions.  The 
loss  sustained  by  an  adult  child,  parent  of  an  adult  child,  or  col- 
lateral relative  can  only  be  of  the  latter  description. 

SAME— FUTURE  CARE  AND  SUPPORT. 

133.  The  damages  recoverable  by  a  ^wrife  or  minor  child 
for  loss  of  the  care  and  support  of  a  husband  or 
father  is  measured  by  the  amount  -which  the  de- 
ceased "would  probably  have  earned  during  his  life 
for  their  benefit. 

The  i)ecuniary  loss  which  a  wife  sustains  by  the  death  of  a  hus- 
band, and  which  a  minor  child  sustains  by  the  death  of  a  father, 
necessarily  includes  the  loss  of  support  which  the  deceased  owed 
them  respectively.'*''  The  measure  of  damages  is  the  amount  which 
the  deceased  would  probably  have  earned  during  his  life  for  tlicir 

pension  laws  she  drew  on  liis  nccouiit,   it   was   liikl   iliat  sliu  could  recover 
damages  on  account  of  Its  loss.    Ewcn  v.  Railway  Co.,  38  Wis.  G13. 

■'*  Illinois  Cent.  K.  Co.  v.  Woldcn,  r>2  111.  L'lX);  (•lii(a;,'o,  K.  1.  A:  1'.  K.  Co.  v. 
Austin,  GO  111.  42G;   Chicago  &  A.  K.  Co.  v.  May,  Kis  111.  i:ss. 


012  DAMAGES    KOll    Dl.A'l'II    BY    WRONGFUL    ACT.  (Ch.    12 

benefit,  taking  into  consideration  his  age,  ability,  and  disposition  to 
^^■ol•lv,  and  habits  of  living  and  expenditure. ''^  To  this  may,  of 
course,  be  added,  as  in  other  cases,  the  amount  which  he  would 
probably  have  accumulated,  and  which  they  might  reasonably  have 
expected  to  inherit.^*^  The  damages  to  the  widow  should  be  calcu- 
lated upon  the  basis  of  their  joint  lives;  the  damages  to  the  minor 
children,  for  the  loss  of  support,  should  be  confined  to  their  minor- 
ity.°^     It  seems  that  the  pecuniary  value  of  the  support  of  the  head 

B5  Pennsylvania  R.  Co.  v.  Butler,  57  Pa.  St.  335;  Pennsylvania  Tel.  Co.  v. 
Varnau  (Pa.  Sup.)  15  Atl.  624;  Hudson  v.  Houser,  123  Ind.  309,  24  N.  E. 
243;  Baltimore  &  O.  R.  Co.  v.  State,  24  Ind.  271.  Scliaub  v.  Railroad  Co., 
106  Mo.  74,  16  S.  W.  924;  Hogue  v.  Railroad  Co.,  32  Fed.  305;  Sliaber  v.  Rail- 
way Co.,  28  Minn.  103,  9  N.  W.  575;  Bolinger  v.  Railroad  Co.,  36  Minn.  41S, 
31  N.  W.  856;  Burton  v.  Railroad  Co.,  82  N.  C.  504,  84  N.  G.  192;  Blackwell 
V.  Railroad  Co.,  Ill  N.  C.  151,  16  S.  E.  12;  Pool  v.  Soutliern  Pac.  Co.,  7 
Utah,  303,  26  Pac.  654;  Wells  v.  Railway  Co.,  7  Utah,  482,  27  Pac.  688;  Bal- 
timore &  O.  R.  Co.  V.  Wiglitman,  29  Grat.  431.  Soyer  v.  Water  Co.,  15  Mont. 
1,  37  Pac.  838;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Sweet,  60  Ark.  550,  31  S.  W. 
571.  Opportunities  of  acquiring  wealth  by  change  of  circumstances  in  life 
are  not  to  be  considered.  Mansfield  Coal  &  Coke  Co.  v.  McEnery,  91  Pa.  St. 
185;  Atlanta  &  W.  P.  Ry.  Co.  v.  Newton,  85  Ga.  517,  11  S.  E.  776.  See  Chris- 
tian V.  Railway  Co.,  90  Ga.  124,  15  S.  E.  701.  Deceased  was  a  fireman,  and 
evidence  was  introduced  to  prove  that  firemen  on  defendant's  road,  when  thoy 
had  acquired  sufficient  experience  and  skill,  were  sometimes  promoted  to  be 
engineers  at  increased  wages.  Held  that,  as  it  was  not  shown  that  deceased 
possessed  the  skill  to  be  an  engineer,  the  admission  was  error.  Brown  v. 
Railroad  Co.,  64  Iowa,  652,  21  N.  W.  193.  The  court  refused  to  charge  that, 
if  deceased  was  largely  indebted,  the  plaintiff  would  have  no  pecuniary  in- 
terest in  his  life  until  his  debts  were  paid,  and  that  the  jury  must  fix  a  pe- 
riod when  he  would  have  acquired  property  beyond  his  debts.  Held  no  er- 
ror. Pennsylvania  R.  Co.  v.  Plenderson,  51  Pa.  St.  315.  But  in  Texas  it  is 
held  that  it  is  proper  to  show  what  were  the  deceased's  chances  of  pi'omotion.. 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Johnston,  78  Tex.  536.  15  S.  W.  104;  Texas  &  P. 
Ry.  Co.  v.  Robertson,  82  Tex.  657,  17  S.  W.  1041;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
John  (Tex.  Civ.  App.)  29  S.  W.  5.58.  And  that  the  standard  is  not  to  be  fixed 
by  what  he  Avas  earning  when  he  died.  International  «fc  G.  N.  R.  Co.  v.  Or- 
mond,  64  Tex.  485;   East  Line  &  R.  R.  Ry.  Co.  v.  Smith,  65  Tex.  167. 

56  Lake  Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  108,  31  N.  E.  504;  Catawissa 
R.  Co.  V.  Armstrong,  52  Pa.  St.  282;  Castello  v.  Landwehr,  28  Wis.  522;  Law- 
son  V.  Railway  Co.,  04  Wis.  447,  24  N.  W.  618.     See  post,  p.  334. 

67  The  court  charged  that  the  jury  should  estimote  the  reasonable  probabili- 
ties of  the  life  of  deceased,  and  give  plaintiffs  such  peeuniaiy  damages   as 


§    133)  FUTURE  CARE  AND  SUPPORT.  313 

of  a  family  cannot  be  limited  to  the  amount  of  his  wages  earned 
for  the  benefit  of  his  family,  but  that  his  daily  services,  attention, 
and  care  on  their  behalf  may  be  considered.^ ^  The  testimony  in 
such  cases,  as  also  in  actions  for  the  death  of  a  minor  child,  neces- 
sarily takes  a  wider  range  than  when  the  question  is  simply  whether 
the  beneficiaries  have  suffered  a  pecuniary  loss,  in  a  strict  sense.^® 
Provided  that  it  appears  that  the  deceased  was  apparently  able  to 
provide  for  the  support  of  his  family,  the  court  will  be  slow  to  set 
aside  a  verdict  for  lack  of  exact  proof.^"     Thus,  it  is  not  essential 

they  had  suffered,  or  would  suffer,  as  the  direct  consequence  of  deceased's 
death;  that  for  the  children  these  prospective  damages  should  be  estimated 
to  their  majority,  "and  as  to  the  widow,  to  such  probability  of  life  as  the  jury 
may  find  reasonable."  Held,  that  this  was  correct,  and,  no  objection  being 
made  to  tlie  part  relating  to  the  widow,  it  would  be  assumed  that  it  was  un- 
■derstood  by  the  juiy  as  meaning  the  probable  duration  of  the  joint  lives  of 
herself  and  her  husband.  Baltimore  &  R.  Turnpike  Road  v  State,  71  Md. 
573,  18  Atl.  884;  Baltimore  &  O.  R.  Co.  v.  State,  33  Md.  542;  Baltimore  & 
O.  R.  Co.  V.  State,  41  Md.  268;    Duval  v.  Hunt,  34  Fla.  85,  15  South.  87G. 

58  Bolinger  v.  Railroad  Co.,  36  Minn.  41S,  31  ^.  W.  856. 

5  9  Staal  V,  Railroad  Co.,  57  Mich.  239,  23  N.  W.  795.  Testimony  as  to  the 
household  and  living  expenses  of  decedent's  family,  by  one  who  had  kept  the 
accounts,  is  competent  to  show  the  loss  to  decedent's  family  because  of  his 
death.  Hudson  v.  Houser,  123  Ind.  309,  24  N.  E.  243.  Evidence  that  de- 
ceased had  been  in  the  habit  of  turning  his  wages  over  to  his  wife  was  pi-op- 
^^rly  admitted  for  the  purpose  of  showing  the  loss  sustained  by  deceased's 
family.  Lake  Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  168,  31  N.  E.  564.  As 
having  reference  to  the  question  of  the  reasonable  expectation  of  pecuuiaiy 
benefit  to  the  widow,  an  instruction  to  the  jury  tliat  they  might  consider  his 
capacity  to  earn  money,  the  injury  to  his  business,  his  health,  and  general 
condition  in  life,  as  disclosed  by  the  evidence,  is  not  erroneous.  Clapp  v. 
Railway  Co.,  36  Minn.  6.  29  N.  W.  340.  Evidence  showing  what  property 
<leceased  had  when  he  came  to  the  state  20  years  before,  what  occupation  he 
had  followed,  iiow  much  he  had  accumulated,  and  what  he  was  worth  at  the 
time  of  his  death,  held  admissible.  I'liclps  v.  Railroad  Co.,  37  Minn.  4S5,  35 
N.  W.  273. 

CO  Deceased  left  a  wife  and  thiee  childicii,  iwo  of  tliciii  minors.  lie  was 
a  strong,  healthy  man,  48  years  old,  afcustomed  to  cain  good  wages  as  a  day 
laborer.  Held,  that  a  verdict  of  .$5,000  was  not  dearly  e-xcessive.  Bi)linger 
V.  Railroad  Co.,  36  Minn.  418.  31  N.  W.  8.56.  The  deceased  was  a  laboring 
man,  sober  and  industrious,  vho  provided  for  his  family  as  best  he  could 
under  the  circumstances,  and  was  30  years  old.  lie  left  a  widow  and  six 
young   children.      Hrld,    thai    a    verdict   of  .$5,000    was    u<»t    excessive.      H.iard 


314  DAMAGES    FOR    DKATII    BY    WRONGFUL    ACT.  (Ch.    12 

that  the  deceased  should  have  been  actually  earning  wages  at  the 
time  of  his  death;  ^^  but,  in  default  of  such  proof,  the  amount  of 
the  verdict  will  doubtless  be  more  carefully  scrutinized.®^  The 
amount  of  verdict  which  v\all  be  sustained  differs  considerably  in 
different  jurisdictions." 

Com'rs  Howard  Co.  v.  Legg,  110  Ind.  479,  11  N.  E.  612.  The  deceased  was 
the  head  of  a  family,  39  years  old,  able  to  perform  the  duties  of  fireman,  and 
always  at  work.  Held,  that  the  jury  were  authorized  to  find  more  than  nom- 
inal damages,  and  that  a  verdict  of  $3,500  was  not  excessive.  Smith  v. 
Railroad  Co.,  92  Mo.  3G4,  4  S.  W.  129. 

61  Evidence  was  given  of  the  age,  habits,  health,  and  occupation  of  the  de- 
ceased, and  of  the  condition  of  his  family,  etc.,  but  there  was  no  evidence  of 
the  specific  wages  paid  him  at  the  time  of  his  death.  Held,  that  the  jury  were 
not  confined  to  nominal  damages.  Baltimore  &  O.  R.  Co.  v.  State,  24  Md.  271. 
Averments  showing  that  deceased  was  a  laboring  man,  working  for  defendant 
(without  alleging  that  he  was  receiving  any  compensation  for  his  labor)  and 
that  he  left  no  widow,  but  left  a  child  three  years  old,  held,  on  demurrer,  to- 
show  sufficiently  that  such  child  suffered  pecuniary  damage  by  the  father's 
death.     Kelley  v.  Railway  Co.,  50  Wis.  381,  7  N.  W.  291. 

6  2  The  deceased  was  a  common  laborer,  who  left  a  widow  and  several 
minor  children,  but  what  wages  he  received  was  not  shown.  Held,  that  a 
>-erdict  of  $5,000  was  excessive,  in  view  of  the  absence  of  evidence  that  he 
earned  annually  so  much  as  the  interest  on  one  half  tliat  sum.  Illinois  Cent. 
R.  Co.  V.  Welden,  52  111.  290. 

6  3  Deceased  earned  $1  a  day,  which  he  always  brought  home  and  spent  on 
his  wife.  The  probable  duration  of  his  life  was  27  years.  Held,  that  a  ver- 
dict of  $2,500  should  be  reduced  to  $1,G50.  Louisville  &  N.  R.  Co.  v.  Trammell, 
93  Ala.  350,  9  South.  870.  Deceased  was  31  years  old,  sober  and  industrious, 
a  druggist,  but  at  the  time  of  his  death  was  laying  rails  at  $2.50  a  day.  In 
an  action  by  the  widow,  held  that  $5,000  was  not  excessive.  Dallas  &  W.  Ry. 
Co.  V.  Spicker,  61  Tex.  427.  A  verdict  of  $10,000  will  not  be  set  aside  as 
excessive,  in  view  of  testimony  that  deceased  was  a  "stout,  healthy,  and  so- 
ber" laborer,  about  35  years  old,  earning  $1.25  a  day,  and  that  he  left  a 
widow  and  two  infant  children.  Missouri  Pac.  Ry.  Co.  v.  Lehmberg,  75  Tex. 
(il,  12  S.  W.  838.  Where  the  average  wages  of  the  deceased  were  $125  per 
month,  held  that  a  verdict  of  $5,000  each  in  favor  of  the  widow  and  seven  year 
old  daughter,  i-espectively,  was  not  excessive.  St.  Louis,  A.  &  T.  Ry.  Co. 
V.  Johnston,  78  Tex.  536,  15  S.  W.  104.  The  deceased  was  a  healthy  and 
robust  man  29  years  old,  an  engineer,  and  earning  $125  a  month.  Held,  that 
a  verdict  in  favor  of  his  wife  for  $10,000  was  not  excessive.  Texas  &  P.  Ry. 
Co.  V.  Geiger,  79  Tex.  13,  15  S.  W.  214.  Where  plaintiff's  husband  was  a 
healthy  man,  55  years  old,  who  earned  from  $500  to  $1,200  a  year,  and  who 
had  always  supported  plaintiff,  a  verdict  for  $6,250  actual  damages  held  not 


§  133)  FUTURE  CARE  AND  SUPPORT.  315- 

Action  by  Widow — Evidence  of  Number  of  Children. 

Where  the  children  are  included  among  the  beneficiaries,  as  is 
the  case  under  most  statutes,  evidence  of  their  number  and  ages  is, 
of  course,  necessary/*  Where,  however,  the  action  is  to  be  brought 
by  the  widow  in  her  own  name,  the  question  arises  whether  such 
evidence  is  proper.  In  Pennsylvania,  where  the  widow  sues  for  the 
benefit  of  the  children,  as  well  as  of  herself,  and  the  declaration 
must  state  who  are  the  parties  entitled,  such  evidence  is  required.*' 
In  Missouri,  on  the  other  hand,  and  in  some  other  states,  the  action, 
when  brought  by  the  widow,  is  for  her  sole  benefit.  It  is  held, 
nevertheless,  that,  as  the  burden  of  supporting  minor  children  is 
imposed  upon  her,  evidence  of  their  number  and  ages  is  admissible 
to  show  the  extent  of  the  burden  cast  upon  her  by  the  death.*^* 
So,  in  Wisconsin,  although  the  action  is  for  the  sole  benefit  of  the 
widow,  and  hence  an  instruction  that  damages  may  be  allowed  to 
the  widow  and  children  is  erroneous,®'^  the  fact  that  the  deceased 
left  children  who  will  be  dependent  on  her  may  be  considered  in 
estimating  her  damages.'® 

excessive.  Paschal  v.  Owen,  77  Tex.  5S3,  14  S.  W.  20.3.  Deceased  was  33 
years  old,  in  good  health,  earning  $14  a  week  7  mouths  in  the  year.  Held,  in- 
a  suit  for  wife  and  five  children,  that  ?6,000  was  not  excessive.  Byrd  v. 
Corner,  6  Chi.  Leg.  N.  3G4.  Deceased  was  insolvent  and  in  failing  health,  but 
able  to  superintend  his  business  as  innkeeper.  Verdict  of  $4,000  apportioned 
among  his  children  hdd  excessive.  Hutton  v.  Windsor,  34  U.  C.  Q.  B.  4S7. 
In  suit  for  wife  and  children,  £3,000  held  not  excessive.  Secord  v.  Railway 
Co..  lo  U.  C.  Q.  B.  G31.  In  suit  for  wife  and  children,  £5,000  held  excessive. 
Morley  v.  Railroad  Co.,  16  U.  C.  Q.  B.  504. 

6  4  Breckenf elder  v.  Railway  Co.,  79  Mich.  5G0,  4  N.  W.  957.    See  section  SO. 

8  5  Huntingdon  &  B.  T.  R.  Co.  v.  Decker,  84  Pa.  St.  419. 

86  Tetherow  v.  Railway  Co.,  98  Mo.  74,  11  S.  W.  310;  Soeder  v.  Railway 
Co.,  100  Mo.  G73,  13  S.  AV.  714;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson,  1  C.  C. 
A.  25,  48  Fed.  57.  Under  Rev.  St.  1889,  §  4425,  such  evidence  is,  of  course, 
improper.     Schlereth  v.  Railroad  Co.  (Mo.  Sup.)  19  S.  W.  1134. 

6  7  Schadewald  v.  Railway  Co.,  55  Wis.  5G9,  13  N.  W.  458;  Lieimaun  v. 
Railway  Co.,  82  Wis.  28G,  52  N.  W.  91.  It  is  error  to  direct  the  jury  to  give 
damages  to  recompense  the  estate  of  deceased,  for  such  instruction  In  effect 
directs  them  to  compensate  the  children  as  well  as  the'  widow.  Cores  v. 
Graff,  77  Wis.  174.  4G  N.  W.  48. 

68  Mulcairns  v.  Janesville,  G7  Wis.  24,  29  iN.  W.  5G5;  Abbot  v.  McCadtlen, 
81  Wis.  5G3.  51  N.  W.  1079. 


310  DAMAGES    FOR    DEATH    BY    WUONGFUL    ACT.  (Ch.    12 

Death  of  Parent  of  Minor — Loss  of  Education  and  Personal  Training. 

The  damages  for  loss  of  support  suffered  by  a  minor  child  include 
the  loss  of  such  comforts,  conveniences,  and  also  of  such  education 
as  the  parent  might  have  been  expected  to  bestow  upon  him.  In 
Pym  V.  Railway  Co.,«»  Cockburn,  C.  J.,  said:  ''We  are  of  opinion 
that,  as  the  benefit  of  education,  and  the  enjoyment  of  the  greater 
comforts  and  conveniences  of  life,  depend  on  the  possession  of 
pecuniary  means  to  procure  them,  the  loss  of  these  advantages  is 
one  which  is  capable  of  being  estimated  in  money, — in  other  words, 
is  a  pecuniary  loss, — and  therefore  the  loss  of  such  advantages  aris- 
ing from  the  death  of  a  father  whose  income  ceases  with  his  life  is 
an  injury  in  respect  of  which  an  action  can  be  maintained  on  the 
statute,"  It  has  frequently  been  held,  however,  that  damages  are 
not  confined  to  the  loss  of  such  education  as  is  procurable  only  by 
pecuniary  means,  but  that  they  may  be  given  for  the  loss  of  the 
personal  care,  training,  and  instruction  of  a  parent,  and  even  of  a 
mother,  where  the  father  still  survives.'^'*  A  leading  case  on  this 
subject  is  Tilley  v.  Hudson  River  R.  Oo.,^^  which  was  an  action 
brought  by  a  father  as  administrator  for  the  benefit  of  children  for 
the  death  of  their  mother.  On  the  first  appeal  it  was  held  that  the 
value  of  the  mother's  earnings,  and  the  probability  that  the  children 
would  have  received  an  estate  increased  by  such  earnings  on  the 
death  and  intestacy  of  the  father,  could  not  be  considered;  but, 
upon  the  second  appeal,  it  was  held  that  evidence  of  the  mother's 

6  9  2  Best  &  S.  759,  10  Wkly.  Rep.  737,  31  Law  J.  Q.  B.  249;  afErmecl,  4  Best 
&  S.  396,  11  Wkly.  Rep.  922,  32  Law  J.  Q.  B.  377. 

-0  TUley  v.  Railroad  Co.,  24  N.  Y.  471,  29  N.  Y.  2r)2;  Howard  County  Com'rs 
V.  Legg,  93  Ind.  523;  Stober  v.  Railway  Co.,  91  Mo.  509,  4  S.  W.  389;  Dimmey 
V.  Railroad  Co.,  27  W.  Va.  32;  Searle's  Adm'r  v.  Railway  Co.,  32  W.  Va.  370. 
9  S.  E.  248;  Baltimore  &  O.  R.  Co.  v.  Wightman,  29  Grat.  431;  St.  Louis, 
1.  M.  &  S.  Ry.  Co.  v.  Maddry,  57  Ark.  3(>(j.  21  S.  W.  472.  In  Illinois  Cent.  R. 
Co.  V.  Welden,  52  111.  290.  it  Avas  held  that  while,  on  principle,  an  instruction 
that  the  jury  might  consider  the  loss  of  instruction  and  physical,  moral,  and 
intellectual  training  of  the  father  was  correct,  it  should  not  have  been  given, 
because  there  was  no  evidence  tending  to  show  that  the  deceased  was  fitted 
by  education  or  by  disposition  to  furnish  it.  Followed  in  Chicago,  R.  I.  &  P. 
R.  Co.  V.  Austin,  09  111.  42G.  See,  also.  Baltiirore  &  O.  R.  Co.  v.  Stanley,  54 
111.  App.  215;    St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Sweet,  60  Ark.  550,  31  S.  W.  571. 

^1  Supra. 


§§    134-135)  FUTURE    SERVICES.  317 

capacity  to  bestow  ui?"on  her  children  such  training,  instruction, 
and  education  as  would  be  pecuniarily  serviceable  to  them  was  ad- 
missible, and  that,  as  indicating  such  capacity  on  her  part,  it  was 
not  improper  to  admit  evidence  of  her  capacity  to  conduct  business 
and  save  money.  "It  is  certainly  possible,"  said  Hogeboom,  J., 
"and  not  only  so,  but  highly  probable,  that  a  mother's  nurture,  in- 
struction, and  training,  if  judiciously  administered,  will  operate 
favorably  upon  the  worldly  prospects  and  pecuniary  interests  of  the 
child.  *  *  *  jf  they  acquire  health,  knowledge,  and  a  sound 
bodily  constitution,  and  ample  intellectual  development,  under  the 
judicious  training  and  discipline  of  a  competent  and  careful  mother, 
it  is  very  likely  to  tell  favorably  upon  their  pecuniary  interests." 

SAME— FUTURE  SERVICES. 

134.  The  damages  recoverable  by  a  husband  for  the  death 

of  his   "wrife   include   the    reasonable  value    of  her 
services,  less  the  cost  of  suitably  maintaining  her. 

135.  The  damages   recoverable   by  a  parent  for  the  death 

of  a  minor  child  include  the  value   of  the  child's 
services  during  minority,  less  the  cost  of  support. 

Death  of  ]l'ife — Loss  of  Sercice. 

The  pecuniary  injury  to  a  husband  from  the  death  of  a  wife 
necessarilyincludes  the  loss  of  her  services, and  themeasure  of  dam- 
ages is  their  reasonable  value,'-  less  the  cost  of  suitably  maintain- 
ing her.*  Thus,  in  Whiton  v.  Chicago  &  N.  W.  Ey.  Co.,^'  a  case 
arising  in  the  circuit  court,  under  the  Wisconsin  statute,  the  plain- 
tiff proved  that  his  wife  was  a  superior  woman,  as  wife,  mother,  and 

7  2  Chicago  &  N.  W.  R.  Co.  v.  Whitton,  13  Wall.  270;  Whiton  v.  Railroad 
Co.,  2  Biss.  282,  Fed.  Cas.  No.  17,597;  Chant  v.  Railway  Co.  (ISGO)  Wkly. 
Notes,  134;  Pennsylvania  R.  Co.  v.  Goodman,  G2  Pa.  St.  321);  Delaware,  L. 
&  W.  R.  Co.  V.  Jones,  128  Pa.  St.  308.  IS  Atl.  330;  Lett  v.  Railway  Co.,  11 
Ont.  App.  1,  reversing  Id.,  1  Ont.  548.  Damages  for  the  death  of  a  wife 
must  be  based  on  the  value  of  her  services,  and  it  is  incumbent  ou  tlic  plain- 
tiff to  prove  such  services  and  their  value.  Nelson  v.  Railway  Co.  (.Mit-h.)  G'i 
N.  W.  993. 

•  Gulf,  C.  &  S.  P.  Ry.  Co.  v.  Southwick  (Tex.  Civ.  App.)  30  S.  W.  592. 

7  8  Supra,  note  72. 


318  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.   12 

member  of  society.  The  court  charged  thff  jury  (after  stating  that 
the  damages  were  confined  to  the  pecuniary  loss;  that  it  was  im- 
possible to  lay  down  any  fixed  rule;  and  that  the  matter  largely 
rested  with  the  sound  reason  and  discretion  of  the  jury)  that,  taking 
all  the  facts  and  circumstances  into  consideration,  they  might  con- 
sider the  personal  qualities,  the  ability  to  be  useful,  of  the  deceased, 
and  also  her  capacity  to  earn  money.  The  jury  rendered  a  verdict 
of  |5,000,  which  was  held  not  to  be  excessive.  The  defendant  hav- 
ing brought  the  case  to  the  supreme  court,  the  charge  was  approved, 
Mr  Justice  Field,  who  delivered  the  opinion,  declaring  it  to  be  clear 
and  explicit  as  to  the  character  of  the  damages  which  the  jury  were 
authorized  to  consider.  Proof  that  the  deceased  actually  rendered 
services  is  not  necessary,  but  may  be  inferred  by  the  jury.  Thus, 
in  Chant  v.  South  Eastern  Ey.  Co..''*  which  was  an  action  by  a 
gardener,  owing  to  the  fact  that  the  plaintiff,  the  only  witness, 
broke  down  in  course  of  his  examination,  no  evidence  was  given 
of  the  pecuniary  loss,  but  the  jury  gave  a  verdict  of  £200.  This 
was  moved  against  in  the  exchequer  chamber,  on  the  ground  that 
there  was  no  evidence  of  pecuniary  assistance;  but  the  court 
thought  that,  in  the  absence  of  evidence  to  the  contrary,  it  must 
be  assumed  that  she  was  a  person  of  average  health,  industry, 
and  good  character,  and  that  to  a  poor  man  such  a  wife  gave 
pecuniary  assistance  in  keeping  house,  etc.,  and  declined  to  grant 
a  new  trial.  So,  in  Delaware,  L.  &  W.  R.  Co.  v.  Jones,"^  the 
plaintiff  introduced  evidence  to  show  that  the  deceased  was  GO 
years  old  and  had  always  been  healthy,  and  rested.  The  court 
refused  to  rule  that  this  evidence  did  not  show  a  pecuniary  loss, 
or  that  the  plaintiff  could  only  recover  nominal  damages;  and 
in  the  supreme  court  the  lower  court  was  sustained,  Sterrett, 
J.,  observing  that  the  jury  might  infer  that  she  was  an  ordinarily 
industrious  and  useful  wife.      In  Pennsylvania  R.  Co.  v.  Goodman  ^' 

7  4  Supra,  note  72.  But  see  Mitchell  v.  Railroad  Co.,  2  Hun.  535,  where  a 
verdict  for  $4,000  was  set  aside  as  unauthorized  by  the  proof,  the  only  pecun- 
iary loss  shown  being  what  might  be  inferred  from  the  fact  that  deceased 
was  a  married  woman  and  aged  20. 

7  5  Supra,  note  72. 

'6  62  Pa.  St.  '6-d.  The  court  charged  that  damages  should  be  given  as  a 
pecuniary  compensation,  the  jury  measuring  the  plaintiff's  loss  by  a  just  estl- 


^§    134-135)  FUTURE    SERVICES.  319 

it  is  said  that  the  frugality,  industry,  usefulness,  attention,  and  ten- 
der solicitude  of  a  wife  and  the  mother  of  children,  inasmuch  as  they 
render  her  services  more  valuable  than  those  of  an  ordinary  serv- 
ant, are  elements  which  are  not  to  be  excluded  from  the  jury  in 
making  their  estimate  of  value. 

Death  of  Minor  Child — Loss  of  Service. 

In  an  action  for  the  benefit  of  a  parent  for  the  death  of  a  minor 
child  the  damages  necessarily  include  the  loss  of  the  child's  services 
during  minority,'^^  and  the  measure  of  damages  is  the  value  of  the 
services  less  the  probable  cost  of  support  and  maintenance.^®  It  is 
not  essential  that  the  child  should  ever  have  earned  anything.  Thus, 
in  Duckworth  v.  Johnson,^  ^  a  father,  who  was  a  working  man,  sued 
for  the  death  of  a  son  14  years  of  age,  who  had  earned  4s.  a  week 
for  a  year  or  more,  but  who,  at  the  time  of  his  death,  was  without 
emploj-ment.  There  was  no  evidence  of  the  cost  of  boarding  and 
clothing  him,  and  the  judge  left  it  to  the  jury  to  say  whether  the 
plaintiff  had  sustained  any  pecuniary  loss  by  the  death;  and,  the 
jury  having  found  a  verdict  of  £20,  it  was  held  that  the  plaintiff  was 

mate  of  the  services  and  companionship  of  the  wife;  that  is,  by  their  value 
in  a  pecuniary  sense,  nothing  being  allowed  for  the  plaintiff's  wounded  feel- 
ings. The  charge  was  sustained,  on  the  ground  that  "companionship"  was 
evidently  used  to  express  the  relation  of  the  deceased  in  the  character  of  the 
services  performed. 

7  7  Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;  Chicago  v.  Keefe, 
114  111.  222,  2  N.  E.  2G7;  Illinois  Cent.  R.  Co.  v.  Slater,  129  111.  91,  21  N.  E. 
575;  McGovern  v.  Railroad  Co.,  67  N.  Y.  417;  Galveston  v.  Barbour,  G2  Tex. 
172;  Rains  v.  Railway  Co.,  71  .Mo.  1G4;  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa. 
St.  318;  Caldwell  v.  Biowu,  53  Pa.  St.  453.  A  widowed  mother  may  recover 
notwithstanding  that  she  has  no  right  to  the  services  of  a  minor  child,  since 
the  act  gives  her  a  right  of  action.  Pennsylvania  R.  Co.  v.  Bantom,  54  Pa. 
St.  495.  A  parent  may  recover  damages  for  the  death  of  a  minor  child  al- 
though the  latter  never  contributed  to  the  parent's  support.  Mollie  Gibson 
Consol.  Mining  &  Milling  Co.  v.  Sharp,  5  Colo.  App.  321,  38  I'ac.  S50. 

TSRockford,  R.  1.  &  St.  L.  R.  Co.  v.  Dolaney.  82  111.  198;  Rajnowski  v. 
Railroad  Co.,  74  Mich.  15,  41  N.  \V.  847;  Pennsylvania  Co.  v.  Lilly,  73  lud. 
252;  Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85.  The  value  of  the  services 
Is  to  be  without  regard  to  any  peculiar  value  wliich  the  parent  miglu  attach 
to  them.     St.  Louis,  I.  .M.  &  S.  Ry.  Co.  v.  Freeman,  3()  ,\rk.  41. 

78  4  Hurl.  &  N.  053,  29  L.  J.  Exch.  25,  5  Jur.  (N.  S.)  U30. 


320  DAMAGES  FOR  DEATH  BY  WRONGKUL  ACT.        (Ch.  12 

entitled  to  retain  it.  In  Bramall  v.  Lees  *°  a  father  recovered  £15 
for  the  death  of  a  daughter  12  years  old,  who  had  never  actually 
earned  anything,  but  who  might,  if  she  had  lived,  have  obtained 
work  in  a  factory.  So,  in  Condon  v.  Railway  Oo.,^*  a  widow  re- 
covered £10  for  the  death  of  a  son  of  14,  who  had  never  earned  any- 
thing, but  whose  capabilities  were  valued  at  Gd.  a  day. 

In  no  English  case  does  it  appear  that  damages  have  been  given 
for  the  death  of  a  child  of  such  tender  years  as  to  be  incapable  of 
earning  wages.  But  in  the  United  States  it  is  well  settled  that 
substantial  damages  may  be  recovered  in  such  cases.  Ihl  v.  Railway 
Co.^-  is  a  leading  case  in  point.  The  action  was  brought  for  the 
death  of  a  child  three  years  old,  and  the  verdict  was  $1,800.  The 
court  of  appeals  sustained  the  lower  court  in  refusing  to  nonsuit  the 
plaintiff,  or  to  direct  a  verdict  for  nominal  damages,  for  absence 
of  proof  of  pecuniary  damages  to  the  next  of  kin.  "It  was  within 
the  province  of  the  jury,"  said  Rapallo,  J.,  "who  had  before  them  the 
parents,  their  position  in  life,  the  occupation  of  the  father,  and  the 
age  and  sex  of  the  child,  to  form  an  estimate  of  the  damages  with 
reference  to  the  pecuniary  injury,  present  or  prospective,  resulting 
to  the  next  of  kin.     Except  in  very  rare  instances,  it  would  be  im- 

80  29  L.  T.  111.  See  Chapman  v.  Rothwell,  4  .Tur.  (N.  S.)  IISO,  where 
Crompton,  J.,  comments  upon  the  case  with  approval. 

81  16  Ir.  Com.  Law,  415.  See  Burke  v.  Raih-oad  Co.,  10  Cent.  Law  .J.  48. 
In  an  action  by  a  father  for  the  death  of  his  daughter,  aged  10,  it  was  proved 
that  deceased  lived  with  her  parents,  and  was  maintained  by  them,  rendering 
services  which  enabled  them  to  dispense  with  a  servant.  No  evidence  was 
given  of  the  exact  value  of  her  services,  or  as  to  the  cost  of  her  maintenance. 
Held,  that  there  was  evidence  for  the  jury,  but  a  verdict  for  £150  should  be 
reduced  to  £50.  Wolfe  v.  Railway  Co.,  20  L.  R.  Ir.  548.  The  plaintiff's  father 
and  stepmother  were  killed  simultaneously.  An  action  for  the  loss  of  the 
father  had  been  instituted  in  which  £100  was  obtained;  but  Is.  only  was  allo- 
cated to  plaintiff,  who  sued  in  a  second  action  for  the  death  of  her  stepmother. 
The  parties  were  in  humble  life.  The  stepmother  earned  Gs.  a  week  besides 
her  food,  which  earnings  were  applied  to  the  support  of  the  family.  Plaintiff 
resided  with  her  father  and  stepmother.  For  six  months  preceding  the  death 
she  earned  5s.  a  week,  but  previously  had  not  been  able  to  work  from  weak- 
ness of  health.  Held,  that  a  verdict  in  the  former  case  was  no  bar;  also  that 
there  was  evidence  of  pecuniary  loss  sufficient  to  sustain  the  action.  Johns- 
ton V.  Railway  Co.,  26  L.  R.  Ir.  691. 

82  47  N.  Y.  317. 


§§    134-135)  FUTURE   SERVICES.  321 

practicable  to  furnish  direct  evidence  of  any  specific  loss  occasion- 
ed by  the  death  of  a  child  of  such  tender  years;  and  to  hold  that, 
without  such  proof,  the  plaintiff  could  not  recover,  would,  in  effect, 
render  the  statute  nugatory  in  most  cases  of  this  description.  It 
cannot  be  said,  as  a  matter  of  law,  that  there  is  no  pecuniary  dam- 
age in  such  a  case,  or  that  the  expense  of  maintaining  and  educating 
the  child  would  necessarily  exceed  any  pecuniary  advantage  which 
the  parents  could  have  derived  from  his  services  had  he  lived. 
These  calculations  are  for  the  jury,  and  any  evidence  on  the  subject 
beyond  the  age  and  sex  of  the  child,  the  circumstances  and  condition 
in  life  of  the  parents,  or  other  facts  existing  at  the  time  of  the  death 
or  trial,  would  necessarily  be  speculative  and  hypothetical,  and 
would  not  aid  the  jury  in  arriving  at  a  conclusion."  He  adds  that 
the  amount  of  damages  could  have  been  reviewed  in  the  court  be- 
low, but  could  not  in  the  court  of  appeals;  the  only  question  for  the 
higher  court  being  whether  any,  or  more  than  nominal,  damages 
could  be  recovered.^^ 

83  In  Lehman  v.  City  of  Brooklyn,  20  Baib.  234,  a  stricter  construction  of 
the  statute  was  adopted.  In  that  case  Brown,  J.,  held  that  a  verdict  of 
$1,500  for  a  child  of  four  years  was  excessive,  and  forcibly  states  the  argu- 
ment against  the  allowance  of  substantial  damages  in  such  cases:  "For  the 
next  ten  years,"  he  says,  '"had  he  lived,  it  may  safely  be  said  that  he  would 
have  been  a  burden  in  place  of  a  benefit,  pecuniarily,  to  his  parents.  And  for 
The  next  seven  years  after  that,  if  educated  to  a  profession  or  mercantile 
calling,  or  put  to  a  trade,  he  would  have  done  well— much  better  than  the  ma- 
jority of  lads— if  he  supported  himself.  During  all  this  time  he  would  have 
been  exposed  to  disease  and  death.  *  *  *  The  lil'e  of  this  little  buy,  how- 
ever priceless  may  have  been  its  value  in  other  aspects,  had  no  pecuniary 
value  which  the  jury  could  justly  estimate  at  $1,500.  If  the  plaintiff  recov- 
ered at  all,  the  damages  should  have  been  nominal."  But  this  decision  is 
opposed  to  the  decisions  earlier  and  later.  Indeed,  'n  actions  for  the  death 
of  minor  children,  as  in  other  actions  under  the  statute,  the  New  York  courts 
have  gone  fai-ther  than  those  of  any  other  state  in  yielding  the  question  of 
damages  to  the  discretion  of  the  jury.  Thus  in  Oldlield  v.  Railroad  Co.,  14  N. 
y.  310,  affirming  3  E.  D.  Smith,  103,  which  was  an  action  for  the  death  of  a 
daughter  six  years  old,  the  judge  charged  that  the  plaintilf  could  recover  what- 
ever pecuniary  loss  the  next  of  kin  (tlie  mother)  iniglit  be  suppdsed  to  iueiu* 
in  consequence  of  the  loss  of  the  child,  and  qualilied  this  by  adding  th;u  tlic 
jury  were  to  give  what  they  should  dcein  fair  and  just,  with  reference  to 
the  pecuniary  injury  resulting  from  the  death.  The  judge  also  excluded  all 
considerations  arising  from   the  sulleiiiig  of  the  cliild   or-  (he  anguish  ul'  (ho 

LAW  DAM. — 21 


322  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

In  conformity  with  the  views  expressed  in  Ihl  v.  Forty-Second  St. 
By.  Co.,  it  is  established  that  the  jury  may  infer  the  amount  of  loss 
from  proof  of  the  age,  sex,  and  condition  in  life  of  the  deceased 
child,  and  that  testimony  as  to  the  value  of  the  services  is  unneces- 

paronts.  and  confined  the  rule  of  damages  exclusively  to  indemnification  for  a 
pecuniary  loss.  This  instruction  was  sustained  by  the  court  of  appeals. 
Wright.  .T..  observins  that  it  was  only  another  way  of  instructing  the  jury 
that  the  damages  were  a  sum  which,  in  their  opinion,  taking  into  consideration 
all  the  circumstances  of  the  case,  would  be  the  pecuniary  loss  to  the  next  of 
kin.  "This,"  he  concludes,  "was  right,  unless  the  statute  limits  the  recovery 
to  the  actual  loss  proved  at  the  trial.  We  think  it  does  not."  See  Quin  v. 
Moore,  15  N.  Y.  432.  In  O'Mara  v.  Railroad  Co.,  38  N.  Y.  445,  the  jury  ren- 
dered a  verdict  of  $1,500  for  a  boy  11  years  old.  The  defendant  moved  for  a 
new  trial  on  the  ground  that  there  was  no  evidence  of  the  pecuniary  value  of 
the  life,  which  was  denied,  and  in  the  court  of  appeals  the  lower  court  was 
sustained.  Hunt,  C.  J.,  observing  that  the  jury  would  have  the  right,  acting 
upon  their  own  knowledge,  and  without  proof,  to  say  that  the  services  of  a  boy 
from  11  until  21  years  of  age  were  valuable  to  his  father,  and  to  estimate  their 
value.  The  court  went  to  the  extreme  length  in  Houghkii'k  v.  Canal  Co.,  92 
N,  Y.  219;  Id.,  28  Hun.  407  (general  term);  Id.,  11  Abb.  N.  C,  72,  63  How. 
Prac.  328  (special  term),— in  which  case  a  verdict  of  $5,000  was  rendered 
for  an  only  child  6  years  old,  intelligent  and  healthy,  the  daughter  of  a  mar- 
ket gardener,— these  facts  and  the  circumstance  of  her  death  constituting  the 
only  evidence.  The  general  term  declined  to  set  the  verdict  aside  as  excess- 
ive, and  the  court  of  appeals  declared  that  it  was  impossible  to  say  that  error 
bad  been  committed  thereby,  although  it  granted  a  new  trial  on  another 
ground.  In  the  opinion  of  the  court  at  general  term  the  difficulty  of  any  court 
called  upon  to  review  the  damages  in  such  casts  is  clearly  set  forth  as  fol- 
lows: "The  court  in  that  case"  [Ihl  v.  Railroad  Co.,  47  N.  Y.  317],  "says  that 
the  damages  could  be  reviewed  in  this  court.  But  the  difficulty  is,  by  what 
test  are  we  to  review  them?  If  it  is  a  matter  of  guess  Avork,  the  jury  can 
guess  as  well  as  we.  If  we  are  to  review  them  by  the  test  of  the  evidence, 
then  the  difficulty  is  that  there  is  no  direct  evidence  proving  the  amount  of 
loss.  The  facts  to  which  the  consideration  of  the  jury  is  limited  by  the  case 
cited  would  be,  in  the  present  case,  substantially  and  in  brief:  A  girl  of  six 
years,  healthy  and  bright,  only  child  of  a  gardener  and  his  wife,  both  of  whom 
survived  her.  Given  her  death;  what  is  their  pecuniary  loss?"  Referring 
to  the  position  taken  by  the  general  term,  tliat  the  doctrine  of  the  court  of 
appeals  leaves  it  impossible  for  a  court  to  say  in  any  instance  that  damages 
are  excessive,  Finch,  J.,  who  delivered  the  opinion  of  the  court  of  appeals, 
says:  "The  damages  to  the  next  of  kin  *  *  *  are  necessarily  indefinite, 
prospective,  and  contingent.  They  cannot  be  proved  with  even  an  approach 
to  accuracy,  and  yet  they  are  to  be  estimated  and  awarded,  for  the  statute 


§§    134-135)  FUTURE    SERVICES.  323 

sarj,®*  though  perhaps  not  improper.*"  It  would  seem,  however, 
that  such  proof  would  not  dispense  with  the  necessity  of  evidence 
showing  the  expectancy  of  life  of  the  parents.*®  It  is  said  in  some 
of  the  cases  that  where  the  deceased  is  a  minor,  and  leaves  a  parent 
entitled  to  his  services,  the  law  presumes  a  loss  for  which  more  than 
nominal  damages  can  be  recovered.*^  Such  damages  may  be  en- 
has  so  commanded.  But  even  in  such  case  there  is,  and  there  must  be,  some 
basis  in  the  proof  for  the  estimate,  and  that  was  given  here,  and  always  has 
been  given.  Human  lives  are  not  all  of  the  same  value  to  the  survivors. 
The  age  and  sex,  the  general  health  and  intelligence,  of  the  person  killed, 
the  situation  and  condition  of  the  survivors,  and  their  relation  to  the  deceased, 
—these  elements  furnish  some  basis  for  judgment.  That  it  is  slender  and  in- 
adequate is  true;  but  it  is  all  that  is  possible,  and,  while  that  should  be  given, 
more  cannot  be  required.  Upon  that  basis  and  from  such  proof  the  jury  must 
judge;  and,  having  done  so,  it  is  possible,  though  not  entirely  easy,  for  the 
general  term  to  review  such  judgment,  and  set  it  aside  if  it  appears  excess- 
ive, or  the  result  of  sympathy  and  prejudice."  In  Ahem  v.  Steele,  48  Hun, 
517,  1  N.  Y.  Supp.  257,  in  sustaining  a  verdict  of  $4,500  for  a  child  of  six.  Van 
Brunt,  P.  J.,  remarked:  "The  damages  appear  to  be  excessive,  as  it  does  not 
seem  that  there  can  be  any  pecuniary  damage  resulting  from  the  death  of  so 
young  a  child;  *  *  *  but  as  recoveries  have  been  sustained,  based  on  the 
death  of  much  younger  children,  we  see  no  reason  for  interference  with  the 
verdict  upon  this  account."  Gorham  v.  Railroad  Co.,  23  Hun,  449;  Huerzeler 
V.  Railroad  Ck).,  1  Misc.  Kop.  130,  20  N.  Y.  Supp.  070.  But  in  Carpenter  v. 
Railroad  Co.,  38  Hun,  110,  it  was  held  that  a  verdict  could  not  be  sustained 
on  evidence  merely  of  the  relationship,"  age,  and  habits  of  the  child,  when  there 
was  no  evidence  of  the  condition,  pecuniary  and  physical,  of  the  parents  or  of 
their  age.  See,  also.  Gill  v.  Railroad  Co.,  37  Hun,  107;  Birkett  v.  Ice  Co., 
110  N.  Y.  504,  18  N.  E.  108. 

8  4  Little  Rock  &  F.  S.  Ry.  Co.  v.  Barker,  39  Ark.  491;  City  of  Chicago  v. 
Major,  18  111.  349;  City  of  Chicago  v.  Scholten,  75  111.  408;  City  of  Chicago 
V.  Hesing,  83  111.  204;  Union  Pac.  Ry.  Co.  v.  Dunden,  37  Kan,  I,  14  Pac.  501; 
Nagel  V.  Railway  Co.,  75  Mo.  653;  Grogan  v.  Foundry  Co.,  87  Mo.  321; 
Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85.  Austin  Rapid  Transit  Ry.  Co.  v. 
Cullen  (Tex.  Civ.  A  pp.)  29  S.  W.  250. 

sBRajnowski  v.  Railroad  Co.,  74  Mich.  15,  20,  4L^N.  W.  847,  819;  Pennsyl- 
vania Coal  Co.  v.  Nee  (Pa.  Sup.)  13  Atl.  841;  Pennsylvania  R.  Co.  v.  Hender- 
son, 51  Pa.  St.  315.  See,  also,  Klanowskl  v.  Railway  Co.,  57  Midi.  525,  24  N. 
W.  801. 

80  Carpenter  v.  Railroiid  Co.,  3S  Hun,  110. 

8T  Where  the  next  of  kin  are  collateral  kindred  of  the  deceased,  and  have 
not  received  pecuniary  aid  from  him,  proof  of  such  relationship  will  warrant 
a  recovery  of  nominal  damages  only;    but  where  the  di>c(<a.si'd  is  a  minor,  and 


324  DAMAGES    FOli    DEATH    BY    WIIONCFUL    ACT.  (Ch.    12 

hanced  by  proof  of  the  personal  characteristics,  capacity  to  render 
service,  and  habits  of  industry.^^  The  jury  may  talie  into  account 
the  services  which  the  cliild  might  reasonably  have  performed  in 
the  family,  including  acts  of  kindness  and  attention  which  would 
administer  to  the  comfort  of  the  family.««  From  the  nature  of  the 
case,  juries  cannot  be  held  to  fixed  and  precise  rules  in  estimating 
damages  in  case  of  the  death  of  young  children.'"'  Nevertheless,  as- 
in  other  cases,  the  courts  exercise  their  right  to  set  aside  and  reduce 
excessive  verdicts,  though  upon  what  principle  the  limit  is  determin- 
ed it  is  often  difficult  to  understand.  The  extent  and  character  of 
the  supervision  exercised  is  illustrated  in  the  cases  collected  in  the 
subjoined  note."^ 

leaves  a  father  entitled  to  his  services,  the  law  presumes  there  has  been 
a  pecuniary  loss.  City  of  Chicago  v.  Scholten,  75  111.  4GS;  City  of  Chicago  v. 
Ilesing,  83  111.  2(>i;  Bradley  v.  Sattler,  loG  111.  G03,  41  N.  E.  171;  Atrops  v. 
Costello,  8  Wash.  149,  35  Pac.  G20.  Deceased  was  a  brakeman  over  20  years 
old,  whose  next  of  kin  was  a  father,  liviiig  in  Germany.  Held,  that  the  plain- 
tiff was  entitled  to  more  than  nominal  damages.  The  court  says  that  while 
the  measure  of  recovery  would  be  affected  by  proof,  or  by  the  absence  of  it, 
of  facts  showing  the  value  of  the  life  to  the  survivors,  the  law  presumes  some 
value.  Robel  v.  Railway  Co.,  35  ilinn.  84,  27  N.  W.  305.  It  is  not  competent 
for  the  defendant  to  prove  that  the  child's  services  were  of  no  value.  Fop- 
piano  V.  Baker.  3  Mo.  App.  559. 

88  City  of  Chicago  v.  Scholten,  75  111.  468. 

89  Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Rush,  127  Ind.  545,  2G  N.  E.  1010. 

90  Potter  V.  Railway  Co.,  22  Wis.  615;    Ewen  v.  Railway  Co.,  38  Wis.  G13. 

91  The  mother  was  a  widow,  poor,  and  kept  boarders.  Deceased  was  a 
boy,  an  only  child,  healthy,  intelligent,  and  obedient.  The  physician's  bills 
and  funeral  expenses  were  $290,  On  the  first  trial  the  jury  gave  $4,500, 
which  was  set  aside  as  excessive.  Little  Rock  &  F.  S.  Ry.  Co.  v.  Barker,  33 
Ark.  350.  On  the  second  trial  the  jury  gave  $3,500,  of  which  the  plaintiff 
remitted  $1,235.  .Held,  that  a  third  trial  would  not  be  granted  on  the  ground 
of  excessive  damages.  Id.  39  Ark.  491.  Deceased  was  a  son  six  or  seven 
years  old.  Held,  that  a  verdict  of  $2,000  was  not  so  excessive  as  to  justify 
the  court  to  interfere.  Chicago  &  A.  R.  Co.  v.  Becker,  84  111.  483.  Deceased 
was  within  18  months  of  majority,  and  fitting  herself  to  be  a  teacher,  at  the 
expense  of  her  father.  Her  next  of  kin  were  her  parents  and  a  sister.  Held, 
that  these  facts  did  not  justify  a  verdict  vi  $2,000,  or  more  than  nominal  dam- 
ages. Lake  Shore  &  M.  S.  Ry.  Co.  v.  Sunderland.  2  111.  App.  307.  Whether 
the  damages  were  excessive  is  a  question  of  fact  which  will  not  be  reviewed 
in  the  supreme  court.  City  of  .Toliet  v.  Weston,  123  111.  G41,  14  N.  E.  GG5; 
Id.,  22  111.  App.  223;    Citj-  of  Salem  v.  Harvey,  29  111.  App.  483;    Id.,  129  111. 


§§    134-135)  FUTURE   SERVICES.  325 

Same — Expectancy  of  Benefit  after  Majority. 

Damages  for  the  death  of  an  adult  child,  as  will  be  seen,  are 
usually  confined,  except  where  they  are  based  upon  the  loss  of  a 
prospective  inheritance,  to  cases  where  the  child  has  manifested 
his  willingness  to  assist  his  parents  by  actually  doing  so.     In  ac- 

344,  21  N.  E.  1076.  A  judgment  for  $3.(X)0  for  a  minor,  who  was  11  years 
and  8  months  old,  intelligent,  healthy,  and  promising,  and  left  surviving  him 
a  father,  earning  $700  or  $800  a  year  as  an  engineer,  and  having  a  wife  and 
3  children,  is  not  grossly  excessive.  Union  Pac.  Ry.  Co.  v.  Dunden,  37  Kan. 
1.  14  Pac.  501.  Deceased  was  18  years  old,  and  was  employed  at  $1.40  a 
<lay.  His  next  of  kin  were  a  father  and  brother.  Held,  that  a  vei'dict  of 
$3,400  was  excessive,  as  it  would  realize  a  perpetual  income  equal  to  more 
than  three  quarters  of  his  annual  earnings.  Chicago  &  N.  W.  R.  Co.  v.  Bay- 
field, 37  Mich.  205.  A  verdict  of  $1,500  for  a  strong,  healthy  girl  11  years  old, 
held  not  excessive.  Cooper  v.  Railway  Co.,  66  Mich.  261,  33  N.  W.  300.  De- 
ceased was  6  years  old,  in  good  health,  and  of  ordinary  intelligence  and  prom- 
ise. His  father  and  sole  heir  was  working  on  a  salary,  and  was  40  years 
old.  The  iury  gave  a  verdict  of  $5,000,  which  the  trial  court  reduced  to 
$3,000.  Held,  that  it  should  be  set  aside  as  excessive.  Gunderson  v.  Ele- 
vator Co.,  47  Minn.  161,  49  N.  W.  694.  Cf.  O'Malley  v.  Railway  Co.,  43  Minn. 
289,  45  N.  W.  441.  In  Strutzel  v.  Railway  Co.,  47  Minn.  543,  50  N.  W.  090.  it 
was  held,  "though  not  without  some  hesitancy,"  that  a  verdict  of  $2,.300  for  a 
boy  of  6  years  old  should  not  be  disturbed.  A  verdict  of  $4,000  for  a  boy  of  8 
years  held  excessive,  and  reduced  to  $l',000.  City  of  Vicksburg  v.  McLain. 
67  Miss.  4,  6  South.  774.  A  verdict  of  $5,000  for  a  son  18  years  old,  employed 
as  a  brakeman,  where  there  is  no  evidence  of  the  amount  of  his  earnings, 
and  no  aggravating  circumstances  exist,  is  excessive.  Parsons  v.  Railway 
Co.,  94  Mo.  280,  0  S.  W.  464.  A  verdict  of  $2,2.50  for  a  sou  18  years  old, 
earning  $50  a  month,  the  expenses  of  sickness  and  funeral  being  $200,  is  ex- 
■cessive.  Hickman  v.  Railway  Co.,  22  Mo.  App.  344.  A  verdict  of  $1,846  for 
death  of  a  boy  15  years  old,  strong,  robust,  and  attentive  to  business,  and 
already  earning  $4  a  week,  cannot  be  held  excessive.  Frnuko  v.  City  of  St. 
Louis,  110  Mo.  516,  19  S.  W.  938.  Verdicts  of  $936  and  $1,056  for  two  sons, 
aged  13  and  15,  respectively,  held  excessive.  Telfer  v.  Rnihoad  ('o..  30  N.  .7. 
Law,  188.  It  was  in  evidence  that  the  son  was  14  years  old  wlien  he  was 
killed;  that  the  average  earning  capacity  of  a  lad  from  14  to  21  years  was 
from  75  to  90  cents  a  day;  and  that  the  expense  of  his  maintenance  was 
from  40  to  (JO  cents  a  day.  Held,  that  $1,2.50  was  not  excessive  damages. 
Penn.sylvania  Coal  Co.  v.  Nee  (Pa.  Sup.)  :."'.  Atl.  841.  A  verdict  of  $2,.500  for 
a  healthy  five  year  old  boy,  with  a  fine  mind,  and  well  grown,  kind,  and  duti- 
ful, where  the  parents  are  i)oor,  docs  not  clearly  sliow  tliat  the  jury  commlttod 
some  palpable  error,  or  totally  mistook  the  rule  of  law,  or  were  swayed   i>y 


326  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT,  (Ch.    12 

cordance  with  the  principle  of  these  cases,  it  is  held  in  Arkansas,®* 
Maryland,®^  Michigan,®*  and  Pennsylvania  ®^  that,  in  an  action  for 
the  death  of  a  minor  child  of  tender  years,  damages  are  limited 
to  the  loss  of  service  during  the  child's  minority,  and  that  the 
chances  of  his  surviving  his  parents  and  of  his  ability  and  will- 
ingness to  assist  them  after  that  period  should  be  excluded  from 
consideration.  In  Maryland  ®®  the  same  rule  has  been  held  to  apply^ 
although  the  minor  is  old  enough  to  be  self-supporting,  and  has  ac- 
tually contributed  to  the  support  of  the  parent;  and  the  rule  as  de- 
clared in  Pennsylvania  would  cover  such  a  case.®^  But  in  Ar- 
kansas the  rule  does  not  apply  where  the  minor  has  shown  himself 
able  and  willing  to  make  his  own  living,  and  to  contribute  to  the 

passion  or  prejudice,  so  as  to  warrant  the  court  in  setting  it  aside  as  excessive, 
lioss  V.  Railway  Co.,  44  Fed.  44.  Deceased  was  a  boy  of  eight,  and  his 
mother  was  in  poor  health,  and  dependent  on  friends,  and  lost  by  his  death  a 
pension  of  $2  a  month.  Held,  that  a  verdict  of  $2,000  was  not  excessive. 
Ewen  V.  Railway  Co.,  38  Wis.  613.  Deceased  was  a  healthy  boy,  16  months 
old,  whose  parents  were  poor  and  approaching  middle  life.  Held,  that  a  ver- 
dict of  $1,000  was  not  excessive.  Hoppe  v.  Railway  Co.,  01  Wis.  3o9,  21  X. 
W.  227.  A  verdict  of  $1,200  for  a  boy  eight  years  old,  whose  parents  were 
poor  and  had  a  large  family,  held  not  excessive.  Strong  v.  City  of  Stevens 
Point,  62  Wis.  255,  22  N.  W.  425.  Deceased  was  seven  years  old.  His  father 
was  poor,  troubled  with  rheumatism,  and  sawed  wood  for  a  living,  and  his 
mother  at  times  worked  out.  Held,  that  a  verdict  of  $2,500  was  not  excessive. 
Johnson  v.  Railway  Co.,  64  Wis.  425.  25  N.  W.  223.  A  verdict  of  $2,000  for 
a  l)oy  18  months  old  held  not  excessive.  Schrier  v.  Railway  Co.,  65  Wis.  457, 
27  N.  W.  167. 

92  Little  Rock  &  F.  S.  Ry.  Co.  v.  Barker,  33  Ark.  350;  St.  Louis,  I,  M.  &  S. 
Ry.  Co.  V.  Freeman,  36  Ark.  41. 

93  State  V.  Baltimore  &  O.  R.  Co.,  24  Md.  84. 

9<  Cooper  V.  Railway  Co.,  66  Mich.  261,  33  N.  W.  300. 

9  5  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St.  31S;  Caldwell  v.  Brown,  53  Pa. 
St.  453;    Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95. 

96  No  expectation  of  pecuniary  benefit  to  the  father  from  the  continuance  of 
the  life,  after  minority,  of  a  son  19  years  old,  can  be  considered,  although  the 
son  had  been  emancipated  2  years  before  his  death,  and  had  paid  to  his 
father  the  greater  part  of  his  earnings,  and  had  promised  to  help  him  after 
becoming  of  age.     Agricultural  &  M.  Ass'n  v.  State,  71  Md.  86,  18  Atl.  37. 

9  7  Lehigh  Iron  Co.  v.  Rupp,  100  Pa.  St.  95. 


§§    134-135)  FUTURE    SERVICES.  327 

support  of  his  parents.®'  In  Missouri  and  some  other  states  the 
right  of  action  is  confined  by  the  terms  of  the  statute  to  the  death 
of  a  minor  child.  In  New  York,  KansaSj^**  Texas/ °°  and  Wisconsin, 
damages  are  not  limited  to  the  value  of  the  services  during  minor- 
ity.^°^  In  Xew  York  ^°-  the  right  of  action,  even  in  case  of  the 
death  of  an  adult  child  or  a  collateral  relative,  is  not  confined  to 
cases  where  there  is  evidence  of  past  benefits  upon  which  to  base  a 
reasonable  probability  of  future  benefits;  and  it  is  accordingly  held 
that  in  an  action  for  the  death  of  a  minor  child  the  jury  are  not 
confined  to  a  consideration  of  the  benefits  which  would  have  re- 
sulted to  the  parents  during  minority,  but  may  consider  the  proba- 
ble, and  even  possible,  benefits  which  might  have  resulted  to  them 
from  his  life,  modified  by  the  chances  of  failure  and  misfortune. 
In  Wisconsin  ^°^  it  is  held  that  the  jury  may  take  into  consideration 
the  reasonable  expectation  of  pecuniary  advantage  that  would  have 
resulted  from  the  child  living  beyond  minority;  but  that  it  must 
be  shown  that  the  circumstances  were  such  as  to  render  it  probable 
that  the  parents  might  need  the  services  of  the  child,  or  aid  from 
him,  after  majority;  and  that  a  sufficient  foundation  for  such  dam- 
ages is  laid  by  showing  that  the  physical  or  pecuniary  circumstances 
of  the  parents  were  such  as  to  show  that  they  might  need  such 

8  8  St.  Louis.  I.  M.  &  S.  Ry.  Co.  v.  Davis,  55  Ark.  462,  IS  S.  W.  628. 

9  8  Missouri  Pac.  K.  Co.  v.  Peregoy,  36  Kan.  424.  14  Pac.  7. 

100  Gulf,  C.  &  S.  F.  lly.  Co.  v.  Compton,  75  Tex.  667,  13  S.  W.  667;  San 
Antonio  St.  Ry.  Co.  v.  Mochlcr  (Tex.  Civ.  App.)  29  S.  W.  202.  See  Houston 
&  T.  C.  R.  Co.  v.  Nixon,  52  Tex.  19. 

101  In  an  action  by  the  administrator  for  the  death  of  a  child  IS  months 
old,  owins  to  the  fact  that  another  action  had  been  (erroneously)  l)ejj:un  by  the 
father  to  recover  for  the  loss  of  services  of  the  child  during  minority,  only 
such  damages  were  claimed  as  would  accrue  to  the  father  or  next  of  kin  by 
reason  of  the  loss  of  such  pecuniary  benefit  as  he  might  have  received  after 
the  minority.  A  new  trial  was  granted  for  error  In  the  Instructions,  but  the 
court  intimates  that  the  action  might  be  maintained.  Schelller  v.  Railway 
Co..  32  Minn.  51S,  21  N.  W.  711. 

Although  the  father  had  given  his  time  to  the  deceased  (a  minor  sun),  tlie 
parents  may  recover  more  than  nominal  damages.  St.  Joseph  i^i  W.  R.  Co.  v. 
Wheeler,  35  Kan.  185,  10  Pac.  461. 

102  Birkett  v.  Ice  Co.,  110  X.  Y.  504.  IS  N.  E.  lOS. 

103  Potter  V.  Railroad  Co.,  22  Wis.  615,  21  Wis.  372.  Cf.  Seaman  v.  Trust 
Co.,  15  Wis.  578. 


328  DAMAGKS    FOR    DKATH    BV    WUONGFUL    ACT.  (Cll.    12 

services  or  aid.  In  Iowa  ^"^  and  Washington  ^°'  two  actions  may 
be  maintained, — one  by  the  personal  representative  to  recover  dam- 
ages to  the  estate  for  the  loss  of  benefits  that  would  have  accrued 
after  majority,  and  one  by  the  parent  for  loss  of  services  during 
minority. 

SAME— PROSPECTIVE  GIFTS. 

136.  Damages  may  be  recovered  for  loss  of  prospective 
gifts  which  it  is  reasonably  probable  plaintiff  Tvould 
have  received. 

The  cases  in  which,  upon  the  facts,  damages  are  recoverable  for 
the  loss  of  prospective  gifts,  are  commonly  actions  by  parents  for 
the  death  of  adult  children,  although  cases  also  arise  in  which  such 
damages  may  be  recovered  for  the  benefit  of  adult  children  on  ac- 
count of  the  death  of  a  parent,  or  for  the  benefit  of  brothers  and 
sisters  and  other  collateral  relatives.  As  has  been  said,  such  dam- 
ages are  not  confined  to  cases  of  these  descriptions,  but  may  be  re- 
covered, where  the  facts  furnish  a  proper  basis,  in  addition  to  dam- 
ages for  loss  of  services,  support,  etc.,  in  actions  for  the  benefit  of 
husbands,  waves,  minor  children, ^''^  and,  in  some  jurisdictions  at 
least,  of  parents  of  minor  children. 

In  order  to  lay  a  foundation  for  the  recovery  of  damages  for  the 
loss  of  prospective  gifts,  it  is  usually  held  necessary,  except  in  New 
York,  for  the  plaintiff  to  show  that  the  deceased,  during  his  life, 
gave  assistance  to  the  beneficiaries,  by  way  of  money,  services,  or 
other  material  benefits,  which,  in  reasonable  probability,  would  have 
continued  but  for  the  death.^" 

Death  of  Adult  Child. 

Thus,  in  Dalton  v.  Railway  Co.,^°^  where  it  appeared  that  the 
plaintiff's  son,  who  was  27  years  old  and  unmarried,  and  lived  away 

104  Walters  v.  Kailioad  Co.,  36  Iowa,  45S;  Lawrence  v.  Birney,  40  Iowa, 
?,77;  Walters  v.  Railroad  Co..  41  Iowa.  71;  Benton  v.  Railroad  Co.,  55  Iowa, 
49G.  8  N.  W.  330;    Morris  v.  Railroad  Co..  26  Fed.  22;    Code,  §§  3732,  3761. 

105  Hedrick  v.  Navisation  Co.,  4  Wash.  400,  30  Pac.  714:  2  Hill's  Ann.  St. 
§§  13S,  139. 

106  pym  V.  Railway  Co.,  2  Best  &  S.  759.  4  Best  &  S.  .390. 

107  Cases  cited  in  notes,  infra. 

108  4  c.  B.  (N.  S.)  296,  4  Jur.  (N.  S.)  711,  27  Law  J.  C.  P.  227. 


%    136)  PROSPECTIVE    GIFTS.  329 

from  bis  parents,  had  in  the  last  7  or  8  years  been  in  the  habit  of 
making  them  occasional  presents  of  provisions  and  money,  amount- 
ing to  about  £20  a  year,  it  was  held  that  the  jury  were  warranted 
in  inferring  that  the  father  had  such  a  reasonable  expectation  of 
pecuniary  benefit  from  his  son's  life  as  to  entitle  him  to  recover 
damages.  And  in  Franklin  v.  Eailway  Co.,^°^  it  appeared  that  the 
father  was  old  and  infirm,  and  that  the  son,  who  was  young  and 
earning  good  wages,  assisted  him  in  some  work,  for  which  he  was 
paid  3s.  6d.  a  week;  and,  the  jury  having  found  that  the  father  had 
a  reasonable  expectation  of  benefit  from  the  continuance  of  the  son's 
life,  it  was  held  that  the  action  was  maintainable,  although  the  ver- 
dict of  £75  was  excessive.  In  Sykes  v.  Railway  Co.,^^°  on  the  con- 
trary, where  the  deceased  was  a  bricklayer,  and  received  from  his 
father  the  wages  of  a  skilled  workman,  and  was  of  great  assistance 
to  his  father,  who  was  also  a  bricklayer,  and  who,  owing  to  the  loss 
■of  assistance  from  the  deceased,  could  not  take  the  contracts  which 
he  had  done  during  his  son's  life,  it  was  held  that,  inasmuch  as  the 
benefit  which  the  father  derived  accrued,  not  from  the  relationship, 
but  from  a  contract,  and  there  was  no  evidence  that  he  paid  his  son 
less  than  the  usual  wages,  he  had  suffered  no  pecuniary  loss  from 
the  death."* 

The  distinction  taken  in  the  English  cases  has  generally  been  ob- 
served in  the  United  States.^^^     The  proper  measure  of  damages 

109  3  Hurl.  &  N.  211,  4  Jur.  (N.  S.)  565.  The  plaintiff  was  59  years  old. 
nearly  blind,  injured  in  his  leg  and  hands,  and  unable  to  work  as  formerly. 
Some  5  or  G  years  before  the  death  of  his  son,  when  the  plaintiff  was  out  of 
work  for  6  months,  the  son  had  assisted  the  father  pecuniarily,  but  had  not 
•done  so  since.  Z/cW,  that  there  was  evidence  of  pecuniary  injury.  Hether- 
ington  V.  Railway  Co.,  9  Q.  B.  Div.  100. 

110  44  Law  J.  C.  P.  191,  32  Law  T.  (N.  S.)  199,  23  Wkly.  Rep.  473. 

111  The  injury  to  the  sons  of  deceased  by  the  dissolution  of  a  partnership 
between  him  and  them  cannot  be  considered.  Deraarest  v.  Little,  47  N.  J. 
Law,   28. 

112  In  an  action  for  the  benefit  of  a  father  for  the  death  of  an  unmarried 
son  22  years  of  age,  plaintiff  can  recover  only  by  showing  that  deceased  gave 
assistance  to  his  father,  contributed  money  to  his  support,  or  that  the  father 
had  reasonable  expectation  of  jjocuniary  l>enelit  from  tlie  continued  life  of 
the  son,  the  reasonable  cliaracler  of  this  e.\poct  ition  to  appear  from  the  facts 
in  proof.  In  the  absence  of  sucli  proof,  only  ni)iiiiiial  damages  can  be  re«'()v- 
ered.     Fordyce  v.  McCants,  51  Ark.  ."i»;i,  n  s.  W.  (;'.U.     A  vt-rtlict  of  .SKi.imn) 


330  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Cll.    12 

is  the  present  worth  of  the  amount  which  it  is  reasonably  probable 
the  deceased  would  have  contributed  to  the  support  of  the  parent 
during  the  latter's  expectancy  of  life,  in  proportion  to  the  amount 
he  was  contributing  at  the  time  of  his  death,  not  exceeding  his 

should  be  set  aside,  it  appearing  that  the  next  of  kin  entitled  to  the  benefit  of 
the  verdict  was  a  mother  in  comfortable  pecuniary  circumstances,  who  had 
derived  no  profit  from  the  earnings  of  her  son,  and  was  not  liliely  to  profit  by 
his  earnings  had  he  lived.  Atchison,  T.  &  S.  F.  R.  Co.  v.  Brown,  2G  Kan. 
443.  The  son  lived  apart  from  his  parents,  but  was  unmarried.  No  proof 
was  offered  of  the  parents'  financial  condition,  or  that  they  had  ever  received 
any  actual  pecuniary  benefits  from  him  during  his  lifetime;  nor  was  there 
any  evidence  showing  a  reasonable  probability  of  pecuniarj'  advantage  to  them 
from  the  continuance  of  the  son's  life.  Held,  that  no  more  than  nominal 
damages  should  have  been  recovered.  Cherokee  &  P.  Coal  &  Min.  Co.  v. 
Jjimb,  47  Kan.  469,  28  Pac.  181.  The  deceased  contributed  to  the  support  of 
his  mother  and  invalid  sister,  but  not  of  his  other  brothers  and  sisters.  Held, 
that  damages  should  be  allowed  only  on  account  of  the  first  two.  Richmond 
V.  Railway  Co.,  87  Mich.  374,  49  N.  W.  621.  Damages  for  the  death  of  a  son 
must  be  shown  by  evidence  regarding  the  earnings  of  deceased  and  other  cir- 
cumstances, unless  such  evidence  is  not  accessible.  A  verdict  for  $9,000,  based 
on  no  evidence  showing  the  value  of  deceased's  life  to  plaintiff,  set  aside. 
Houston  &  T.  C.  Ry.  Co.  v.  Cowser,  57  Tex.  293.  The  petition  must  show 
that  the  son  supported  plaintiff,  or  contributed  to  his  support,  or  that  there 
was  some  expectation  of  pecimiary  benefit  to  be  derived  from  deceased;  and 
a  mere  allegation  that  plaintiff,  "as  his  sole  surviving  parent,  had  been  dam- 
aged $10,000  actual  damages,"  is  insufficient.  Winnt  v.  Railway  Co.,  74  Tex. 
32,  U  S.  W.  907.  But  see  Johnson  v.  Railway  Co.,  18  Neb.  690,  2G  N.  W. 
347,  where  the  father  lived  in  Sweden,  and  had  received  no  aid  from  the  de- 
ceased since  his  coming  to  the  United  States,  a  short  time  before  the  death, 
and  it  was  held  that  the  evidence  should  have  been  submitted  to  the  jury. 
In  Pennsylvania  it  is  said  that  "parents*'  and  "children,"  as  used  in  the  act, 
indicate  the  family  relation  in  point  of  fact  as  the  foundation  of  the  right  of 
action,  without  regard  to  age,  Pennsylvania  R.  Co.  v.  Adams,  55  Pa.  St. 
499.  If  the  child  was  of  age  and  the  family  relation  existed,  damages  may 
be  recovered  for  the  loss  of  the  reasonable  expectation  of  pecuniary  advan- 
tage, if  any,  from  the  continuance  of  the  relation.  Id.;  Pennsylvania  R.  Co. 
V.  Keller,  67  Pa.  St  300;  North  Pennsylvania  R.  Co.  v.  Kirk,  90  Pa,  St.  15. 
But  if  the  family  relation  has  ceased,  and  the  child  does  not  contribute  to  his 
parents'  support,  no  damages  can  be  recovered.  Lehigh  Iron  Co.  v.  Rupp,  100 
Pa.  St.  95.  See,  generally,  Johnson  v.  Railroad  Co.,  SO  Hun,  306,  30  N.  Y. 
Supp.  318;  Colorado  Coal  &  Iron  Co,  v.  Lamb  (Colo.  App.)  40  Pac.  251;  Duval 
v.  Hunt,  34  Fla.  85,  15  South.  876. 


§    i36)  PROSPECTIVE    GIFTS.  331 

expectancy  of  life;  ^"  though  it  would  seem  that  the  rnle  Is  not  to 
be  applied  with  mathematical  strictness,  and  that  the  jury  may 
properly  take  into  consideration  the  increasing  wants  of  the  parent, 
and  the  increasing  ability  of  the  child  to  supply  them.^^*  In 
Hutchins  v.  Railway  Co.,^^^  it  was  said:  "The  proper  estimate  can 
usually  be  arrived  at  with  approximate  accuracy  by  taking  into  ac- 
count the  calling  of  the  deceased,  and  the  income  derived  there- 
from; his  health,  age,  talents,  habits  of  industry;  his  success  in  life 
in  the  past,  as  well  as  the  amount  of  aid  in  money  or  services  which 
he  was  accustomed  to  furnish  the  next  of  kin;  and,  if  the  verdict 
is  greatly  in  excess  of  the  sum  thus  arrived  at,  the  court  will  set 
it  aside  or  cut  it  down."  ^^*     The  application  of  the  rules  in  actions 

113  Richmond  v.  Railway  Co.,  supra.  But  in  Virginia,  in  an  action  for  the 
benefit  of  a  widowed  mother  for  the  death  of  an  unmarried  son,  who  lived 
with  and  cared  for  her,  it  was  held  that  the  jury  might  allow  such  sum  as 
would  be  equal  to  his  probable  earnings  during  his  and  her  expectancy  of 
life.    Baltimore  &  O.  R.  Co.  v.  NoeU,  32  Grat.  394. 

11*  International  &  G.  N.  R.  Co.  v.  Kindred,  57  Tex.  491;  Texas  &  P.  Ry. 
Co.  V.  Lester,  75  Tex.  56,  12  S.  W.  955.  See  Iletherington  v.  Railway  Co.,  9 
Q.  B.  Div.  160.  It  is  error  to  instruct  the  jury  as  to  the  disposition  of  the  child 
to  help,  since  the  question  is,  did  he  helpV  Chicago  &.  N.  W.  R.  Co.  v.  Swett, 
45  111.   197. 

116  44  Minn.  5,  46  N.  W.  79.  In  that  case  the  verdict  was  $3,500,  while  the 
evidence  showed  that  the  contributions  of  the  son  to  his  mother  did  not  ex- 
ceed $50  a  year,  and  that  her  expectancy  of  life  was  only  7%  years.  The 
court  reduced  the  verdict  to  $2,000.  Opsahl  v.  Judd,  30  Minn,  12G.  14  N. 
W.   575. 

lie  The  jury  may  consider  the  circumstances  of  the  son,  his  occupatiou, 
age,  health,  habits  of  industry,  sobriety,  and  economy,  his  annual  earnings, 
and  his  probable  diu^tion  of  life  at  the  time  of  the  accident;  also  the  amount 
of  property,  age,  health,  and  probable  duration  of  plaintiff's  life,  and  the 
amount  of  assistance  he  had  a  reasonable  expectation  of  receiving  from  the 
son.  Hall  v.  Railway  Co.,  .^59  Fed.  IS.  Though  the  true  measure  of  dnm- 
ages  for  the  killing  of  plaintiff's  son  is  "a  sum  equal  to  the  pecuniary  beuciit 
the  parent  had  a  reasonable  expectation  of  receiving  from  her  child  had  he  udt 
died,"  it  is  not  misleading  to  charge  that  the  damages  are  "such  sum  as  you 
may,  under  the  evidence,  reasonably  believe  plaintiff  might  have  rocoivod' 
from  the  assisUince  of  deceased  had  ho  not  been  killed;  and  you  ma^-,  in  esti- 
mating such  sum.  If  any,  consider,  under  the  evidence  before  you,  the  age  of 
deceased,  the  time  he  might  have  lived,  the  age  of  the  plaintiff,  the  time  she 
may  probably  live,  and  any  other  evidence  lending  to  show  what  daiiiagcs,  if 


332  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

for  the  deatli  of  adult  children,  particularly  with  reference  to  the 
amount  of  the  verdict,  is  illustrated  in  the  cases  in  the  subjoined 
note.^^^ 

any,  she  may  have  suffered  by  the  killing  of  deceased.  You  will  find  for 
plaintifC  such  damages,  under  the  instructions  heretofore  given,  as  you  may 
think  will  compensate  her  for  the  loss,  if  any,  she  may  have  sustained  by  the 
killling."     Missouri  Pnc.  II.  Co.  v.  Lee,  70  Tex.  49G,  7  S.  W.  857. 

117  Deceased  conti-ibuted  to  the  support  of  his  mother  and  her  invalid  daugh- 
ter $30  to  $50  a  mouth,  and  gave  his  sister  $5  to  $20  a  month  when  neces- 
sary. He  was  healthy,  and  his  expectancy  of  life  was  32V^  years.  His 
mother  was  59  years  old,  and  her  expectancy  was  14%  years.  His  sister  was 
19  years  old,  and  her  expectancy  42  years.  He  earned  $100  to  $150  a  month. 
Held,  that  a  verdict  for  $0,500  was  not  excessive;  and  that  the  jury  were  at 
liberty  to  consider  that,  in  aiding  the  daughter,  who  belonged  to  his  mother's 
family,  the  son  was  contributing  to  the  support  of  his  mother,  who  was  his 
next  of  kin.  Little  Rock  &  F.  S.  Ky.  Co.  v.  Voss  (Ark.)  18  S.  W.  172.  De- 
<?eased  first  received  .$25  and  afterwards  $35  per  month  and  board;  his  seiT- 
ices  were  constantly  increasing  in  value;  his  living  expenses  were  about  $125 
a  year,  and  the  balance  of  his  wages  was  sent  to  his  parents.  His  father 
was  poor,  and  dependent  on  his  relatives  for  support,  and  his  expectancy  of 
life  was  about  17  years.  Held,  that  a  judgment  of  $2,391.50  was  not  excess- 
ive. Fordyce  v.  McCants,  55  Ark.  384,  18  S.  W.  371.  When  deceased  was 
23  years  old,  of  good  habits,  and  the  sole  support  of  his  mother  and  her  minor 
children,  to  whom  he  gave  from  $40  to  $50  per  month,  a  verdict  for  $3,000  is 
not  excessive.  O'Callaghan  v.  Bode,  84  Cal.  489,  24  Pac.  269.  The  father 
was  50  years  old,  and  had  little  property  besides  his  homestead.  When  not 
on  the  road  the  son  lived  with  him  and  contributed  to  the  support  of  the  fam- 
ily. There  was  a  policy  of  insurance  on  the  life  of  the  father  for  the  benefit 
of  the  mother,  upon  which  the  son  paid  the  premuim,  and  he  had  promised 
to  keep  it  paid.  EelJ,  that  a  verdict  for  $2,000  was  not  excessive.  Chicago 
&  A.  II.  Co.  V.  Shannon,  43  111.  388.  The  fact  that  deceased,  whose  next  of 
kin  were  a  father  and  younger  brothers  and  sisters,  contributed  to  the  support 
of  his  brothers,  is  sufficient  to  entitle  his  administrator  to  recover  more  than 
nominal  damages.  Illinois  &  St.  L.  R.  Co.  v.  Whaleu,  19  111.  App.  IIG.  De- 
ceased was  a  butcher,  22  years  old,  and  gave  all  his  earnings  to  his  mother, 
at  one  time  paying  a  debt  of  $400  for  her.  Held,  that  a  verdict  of  $2,400  was 
not  excessive.  Chicago  &  A.  R.  Co.  v.  Adler,  28  111.  App.  102.  Deceased 
left,  surviving  her,  a  father,  mother,  two  brothers,  and  a  sister.  She  lived 
with  her  father,  mother,  and  sister,  and  had  contributed  to  the  support  of 
her  family  as  well  as  she  could,  and  was  under  an  engagement  to  teach  school. 
Held,  that  a  verdict  of  $1,500  was  not  excessive.  City  of  Salem  v.  Harvey, 
29  IlL  App.  483;  affirmed  129  111.  344,  21  N.  E.  107G.  Deceased  was  22  years 
old,  and  left  as  next  of  kin  a  mother  aged  42,  able  to  support  herself  by  the 
needle,  and  two  brothers  aged  16  and  19.     The  evidence  of  his  assistance  to 


§    136)  PROSPECTIVE    GIFTS.  o33' 

Death  of  Parent  of  Adult  Child. 

Although  the  benefit  of  the  action,  unless,  as  in  Missouri,  the  stat- 
ute otherwise  provides,  is  not  confined  to  minor  children,^ ^*  cases 
in  which  the  facts  warrant  a  recovery  of  damages  by  adult  children 
for  the  loss  of  pecuniary  benefits  in  the  nature  of  prospective  gifts 
are  rare.  The  recovery  must,  of  course,  be  based  upon  evidence  of 
pecuniary  benefits  conferred  by  the  deceased  during  his  life,  the 
continuance  of  which  might    reasonably    have    been    expected.^ ^* 

his  mother  was  only  of  a  general  character.  Held,  that  a  verdict  of  $3,000 
was  excessive.  Paulmier  v.  Railroad  Co.,  34  N.  J.  Law,  151.  Deceased  was 
industrious  and  economical,  and,  at  the  age  of  26  years,  earning  $1,000  a  year, 
out  of  which  he  was  furnishing  plaintiff,  his  mother,  then  51  years  old,  $200 
per  annum.  Held,  that  a  verdict  of  $4,200  would  not  be  disturbed.  Texas 
&  P.  Ry.  Co.  V.  Lester,  75  Tex.  5<>,  12  S.  W.  955.  Where  a  mother  who  is  GO 
years  old,  and  in  good  health,  had  for  many  years  been  supported  by  her  son, 
aged  221/^  years,  and  who  at  the  time  of  his  death  was  earning  from  $00  to 
$65  per  month,  one-half  of  which  he  had  been  in  the  habit  of  giving  to  his 
mother,  a  verdict  for  $3,550  is  not  excessive.  Missouri  Pac.  liy.  Co.  v.  Ilenry, 
75  Tex.  220,  12  S.  W.  828.  A  verdict  for  $4,995  was  not  so  excessive  as  to 
justify  reversal,  where  decedent,  at  the  time  of  his  death,  was  a  strong,  healthy 
man  28  years  old,  of  good  habits,  and  earning  $1.75  per  day.  Webb  v.  Rail- 
way Co.,  7  Utah,  3G3,  2G  Pac.  981.  Action  by  father  for  death  of  son  who  had 
just  come  of  age,  and  who,  for  two  years  previous  to  death,  while  attending 
school,  had  worked  on  his  father's  farm  without  wages.  It  was  intended 
that  he  should  study  medicine  at  an  expense  to  his  father  of  $1,000  for  three 
or  four  years,  and  in  vacation  work  at  home.  Held,  that  there  was  no  reason- 
able expectation  of  pecuniary  benefit.     Mason  v.  Bertram,  IS  Ont.  1. 

118  Baltimore  &  O.  R.  Co.  v.  State,  GO  Md.  449. 

119  In  an  action  for  the  benefit  of  two  sons  and  a  daughter,  all  married  and 
of  age,  it  appeared  that  the  deceased  lived  with  her  daughter,  thus  enabling 
the  latter  to  work  and  earn  six  dollars  a  week,  and  that  the  deceased  alpo  fre- 
quently assisted  in  nursing  the  sick  in  her  sons'  families;  but  it  did  not  ap- 
pear how  often  she  went,  how  long  she  stayed,  or  what  was  the  value  of  such 
services.  Held  (1)  that,  as  the  services  rendered  by  the  mother  constituted  the 
pecuniary  benefit  which  the  daughter  had  a  right  to  expect  from  the  continu- 
ance of  the  life,  the  value  of  such  services,  and  not  what  the  daughter  might 
earn,  was  the  measure  of  damages;  (2)  that  there  was  no  evidence  sudlcieut 
to  warrant  the  jury  in  finding  any  pecuniary  loss  to  the  sons.  Baltimore  & 
O.  R.  Co.  V.  State,  03  Md.  135.  The  deceased  lived  with  one  married  daugh- 
ter, and  was  in  the  habit  of  rendering  services  (the  value  of  which  did  not 
appear)  to  her  and  to  her  husband,  who  was  an  Invalid,  and  to  her  other 
adult  children.      Held,  that  a  nonsuit  was  prcipcriy  denied,      retrie  v.   Kailread 


534  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

Nothing  can  be  allowed  for  the  loss  of  a  father's  counsel  and  serv- 
ices, except  so  far  as  they  can  be  estimated  in  money.^*° 

Death  of  Collateral  Relative. 

The  same  rules  apply  to  the  recovery  of  damages  for  the  death  of 
<;ollateral  relatives.^-^ 

SAME— PROSPECTIVE  INHERITANCE. 

137.  Where  it  is  probable  that  the  decedent,  but  for  his 
death,  would  have  accumulated  property,  which,  if 
he  had  died  intestate,  would  have  been  inherited 
by  the  beneficiaries  of  the  action,  these  facts  consti- 
tute such  a  reasonable  expectation  of  pecuniary 
benefit  as  to  authorize  a  recovery  of  damages  for 
its  loss.'" 

Co.,  29  S.  C.  303,  7  S.  E.  515.  The  court  lays  stress  on  the  absence  of  the 
■word  "pecuniary"  from  the  statute.  A  married  daughter  and  son,  nearly  21 
years  old,  neither  of  them  supported  by  their  father,  who  left  also  a  widow 
and  dependent  minor  children,  have  no  right  to  damages.  St.  Louis,  A.  &  T. 
Ry.  Co.  V.  Johnston,  78  Tex,  536,  15  S.  W.  lOi.  In  an  action  by  a  daughter 
for  the  death  of  her  mother,  it  appeared  that  deceased  lived  with  plaintiff,  who 
was  a  laundress,  and  by  whom  she  was  maintained,  the  deceased  assisting  her 
in  the  laundry,  etc.  It  was  not  shown  that  the  value  of  the  services  of  the 
deceased  exceeded  her  support.  Held,  that  a  verdict  for  plaintiff  should  be  set 
aside.     Hull  v.  RaUway  Co.,  26  L.  R.  Ir.  2S9. 

120  Demarest  v.  Little,  47  N.  J.  Law,  28. 

121  Where  decedent  was  addicted  to  the  use  of  intoxicating  liquors,  was 
careless  in  his  work,  and  did  not  save  his  earnings,  his  brothers  and  sisters, 
to  whose  support  he  had  never  contributed,  were  entitled  to  nominal  damages 
only.  Anderson  v.  Railroad  Co.,  35  Neb.  95,  52  N.  W.  840.  But  see  Groten- 
kemper  v.  Harris,  25  Ohio  St.  510.  Deceased  had  a  sister  and  two  brothers 
living  in  Denmark.  He  was  a  bridge  carpenter,  and  received  $2  a  day.  He 
had  been  at  work  three  or  four  months,  and  had  sent  some  money  to  his 
sister  (how  much  did  not  appear).  There  was  no  evidence  as  to  his  age  or 
his  capacity  for  earning  and  saving  money,  or  as  to  the  expectation  of  pecun- 
iary benefit  to  be  derived  by  the  next  of  kin  from  his  estate  if  he  had  lived 
longer.  Eeld,  that  a  verdict  of  $1,750  should  be  set  aside  as  excessive.  Seren- 
«en  V.  Railroad  Co.,  45  Fed.  407.  Damages  to  minor  sisters  and  nieces.  Du- 
val V.  Hunt,  34  Fla.  85,  15  South.  876. 

122  pym  V.  Railway  Co.,  2  Best  &  S.  759,  31  L.  J.  Q.  B.  249,  8  Jur.  (N,  S.) 
819,  10  Wkly.  Rep.  737,  6  L.  T.  (N.  S.)  1537;    affirmed  in  4  Best  &  S.  396,  32 


§    137)  PROSPECTIVE    INHERITANCE.  335 

In  Pym  v.  Great  Northern  Ry.  Co./-=  where  the  party  killed  was 
in  possession  of  personalty  to  the  amount  of  £3,400,  and  was  tenant 
for  life  of  an  estate  in  land  worth  nearly  £4,000  a  year,  with  re- 
mainder to  his  eldest  son  in  tail,  and,  by  settlement,  a  jointure  of 
£1,000  a  year  was  settled  on  his  wife,  and  £20,000  secured  to  the 
younger  children  on  his  death,  and  the  deceased  died  intestate,  it 
was  held  that  the  widow  and  younger  children  had  a  sufficient  ex- 
pectation of  pecuniary  benefit  to  render  its  loss  a  ground  for  action, 
Cockburn,  C.  J.,  after  observing  that  the  loss  of  education  and  the 
greater  comforts  and  enjoyments  of  life  arising  from  the  death  of  a 
father  whose  income  ceases  with  his  life  is  an  injury  in  respect  of 
w^hich  an  action  can  be  maintained,  continues  as  follows:  "A  for- 
tiori, the  loss  of  a  pecuniary  provision,  which  fails  to  be  made  owing 
to  the  premature  death  of  a  person  by  whom  such  provision  would 
have  been  made  had  he  lived,  is  clearly  a  pecuniary  loss  for  which 
compensation  may  be  claimed.  It  is  true  that  it  must  always 
remain  matter  of  uncertainty  whether  the  deceased  person  would 
have  applied  the  necessary  portion  of  income  in  securing  to  his 
family  the  social  and  domestic  advantages  of  which  they  are  said  to 
have  been  deprived  by  his  death;  still  more,  whether  he  would  have 
laid  by  any  and  what  portion  of  his  income  to  make  provision  for 
them  at  his  death.  But  *  *  *  it  is  for  a  jury  to  say,  under 
all  the  circumstances,  taking  into  account  all  the  uncertainties  and 
contingencies  of  the  particular  case,  whether  there  was  such  a  rea- 
sonable and  well-founded  expectation  of  pecuniary  benefit  as  can 
be  estimated  in  money."  The  jury  having  given  £13,000, — £1,000 
to  the  widow,  and  £1,500  to  each  of  the  younger  children, — it  was 
held  that  the  latter  sum  ought  in  each  case  to  be  reduced  to  £1,000. 

In  Illinois  Cent.  R.  Co.  v.  Barron,^-*  an  action  brought  under  the 
Illinois  statute,  the  testator  was  a  bachelor,  35  years  old,  and  had 

Law  J.  Q.  B.  377,  10  Jur.  (N.  S.)  199,  11  Wkly.  Rep.  922;  Illinois  Cent  R.  Co. 
V.  Barron,  5  WaU.  90;  Lake  Erie  &  W.  R.  Co.  v.  Mugg,  132  Ind.  168,  31  N.  E. 
.'>G4;  McAdory  v.  Louisville  &  N.  R.  Co.,  10  South.  507;  Castello  v.  I^uid- 
wehr,  28  Wis.  522.  The  loss  of  the  chainee  to  be  endowed  out  of  her  hus- 
band's accumulations  is  a  pecuniary  injury  to  the  wife.  Catawis.sa  R.  Ct).  v. 
.-S-rm-strong.  52  Pa.  SL  282. 

123  2  Best  &  S.  759,  4  Best  &  S,  39G. 

12*  5  Wall.  00. 


336  DA>rAGES    FOU    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

an  estate  of  |3o,000,  which  he  left  by  will  to  his  father.  He  was  an 
attorney,  but  for  four  years  prior  to  his  death  had  been  a  judge. 
His  term  of  oflQce  having  expired,  he  was  about  to  resume  his  pro- 
fession, with  a  fair  promise  of  doing  as  well  as  before  he  was  elected 
judge,  when  his  professional  income  had  been  about'  |3,000  a  year. 
The  action  was  for  the  benefit  of  his  father,  brothers,  and  sisters, 
one  of  w'hom  had  formerly  received  some  assistance  from  him  for 
support.  The  court  refused  to  charge  that  it  was  necessary  that 
the  beneficiaries  should  have  a  legal  interest  in  the  life,  but  char- 
ged, among  other  things,  that  the  jury  had  a  right,  in  estimating 
the  amount  of  pecuniary  injury,  to  take  into  consideration  the  re- 
lations between  the  deceased  and  his  next  of  kin,  the  amount  of  his 
property,  the  character  of  his  business,  and  the  prospective  increase 
of  wealth  likely  to  accrue  to  a  man  of  his  age  with  the  business  and 
means  which  he  had,  the  possibility  that  his  estate  would  have  de- 
creased rather  than  increased,  and  the  contingency  that  he  might 
have  married,  and  his  property  descended  in  another  channel.  The 
verdict  and  judgment  were  for  |3,7d0;  and,  the  case  coming  before 
the  supreme  court  on  exceptions  to  the  charge,  and  on  the  refusal  to 
charge  as  requested,  the  judgment  was  affirmed.  The  opinion  was 
delivered  by  Mr.  Justice  Xelson,  who  said:  "The  damages  in  these 
cases,  whether  the  suit  is  in  the  name  of  the  injured  party,  or,  in 
case  of  his  death,  under  the  statute,  by  the  legal  representative, 
must  depend  very  much  on  the  good  sense  and  sound  judgment  of 
the  jury,  upon  all  the  facts  and  circumstances  of  the  particular  ease. 
If  the  suit  is  brought  by  the  injured  party,  there  can  be  no  fixed  meas- 
ure of  compensation  for  the  pain  and  anguish  of  body  and  mind,  nor 
for  the  loss  of  time  and  care  in  business,  or  the  permanent  injury  to 
health  and  body.  So,  when  the  suit  is  brought  by  the  representa- 
tive, the  pecuniary  injury  resulting  from  the  death  to  the  next  of 
kin  is  equally  uncertain  and  indefinite.  If  the  deceased  had  lived, 
they  may  not  have  been  benefited,  and,  if  not,  then  no  pecuniary 
injury  could  have  resulted  to  them  from  his  death.  But  the  statute 
in  respect  to  this  measure  of  damages  seems  to  have  been  enacted 
upon  the  idea  that,  as  a  general  fact,  the  personal  assets  of  the  de- 
ceased would  take  the  direction  given  them  by  the  law,  and  hence 
the  amount  recovered  is  to  be  distributed  to  the  wife  and  next  of 
kin  in  the  proportion  provided  for  in  the  distribution  of  personal 


§    137)  PROSPECTIVE    INHERITANCE.  337 

property  left  by  a  person  dying  intestate.  If  the  person  injured  had 
survived  and  recovered,  he  would  have  added  so  much  to  his  per- 
sonal estate,  which  the  law,  on  his  death,  if  intestate,  would  have 
passed  to  his  wife  and  next  of  kin.  In  case  of  his  death  by  the  in- 
jury, the  equivalent  is  given  by  a  suit  in  the  name  of  his  represen- 
tative." 

It  would  seem  that,  where  there  is  no  evidence  tending  to  show 
that  the  deceased  would  probably  have  accumulated  anything  if  he 
had  lived,  no  more  than  nominal  damages  should  be  awarded,^ ^'^ 
and  that  the  verdict  should  be  set  aside  if  the  amount  is  grossly 
out  of  proportion  to  the  reasonable  probabilities  of  the  case.^^' 

125  In  an  action  for  the  benefit  of  brothers  and  sisters,  where  the  deceased 
had  accumulated  nothing,  li^ld,  that  only  nominal  damages  should  be  awarded. 
Howard  v.  Canal  Co.,  40  Fed.  195.  But  in  Grotenkemper  v.  Harris,  25  Ohio 
St.  510,  where  the  deceased  was  only  four  or  five  years  old,  and  the  benefi- 
ciaries were  a  brother  and  sisters,  it  was  held  not  to  be  error  to  charge  that 
the  reasonable  expectation  of  pecuniary  benefit  may  consist  of  what  a  person 
may  give  to  his  next  of  kin  while  living,  as  well  as  what  they  may  inherit 
from  him  at  his  death. 

126  The  injury  claimed  was  the  deprivation  of  the  probable  accumulations 
of  deceased  in  his  business.  The  juiy  gave  a  verdict  of  $27,500.  To  reach 
this  result,  they  must  have  found  that  deceased,  who  had  already  acquired  a 
competence,  would  have  continued  in  business  for  his  full  expectancy  of  life; 
would  have  retained  sufficient  health  and  vigor  of  mind  to  enable  him  to  do 
ro  as  successfully  as  before;  would  have  avoided  business  losses;  would  have 
safely  invested  his  accumulations;  and  that  the  children  would  have  received 
them  at  his  death.  Held,  that  the  verdict  should  be  set  aside,  unless  the  plain- 
tiff would  consent  to  a  reduction  to  $15,000.  Demarest  v.  Little,  47  N.  .T. 
Law,  28.  In  an  action  by  a  widow  for  the  death  of  her  husband,  where  it 
appeared  that  plaintiff  was  20  years  old  and  her  husband  22  at  the  time  of  his 
death,  and  that  his  wages  up  to  that  time  had  iK'on  entirely  consumed  in  the 
expenses  of  his  houseliold,  it  was  error  to  charge  that,  if  the  jury  believed 
the  widow's  expectancy  of  life  was  greater  than  her  husband's,  they  should 
allow  her  the  present  value  of  any  property  she  would  probably  have  received 
from  her  husband  as  dower  if  he  had  not  been  killed,  as  the  realization  of 
any  sum  as  dower  depended  on  too  many  remote  contingencies.  St.  Louis.  I. 
M.  &  S.  Ry.  Co.  V.  Needham,  3  C.  C.  A.  120,  52  Fed.  371.  Decedent  was  a 
widow  61  years  old,  who  had  done  a  profitable  business  as  a  boardinghou.'^e 
keeper,  and  had  made  some  money,  besides  supporting  a  daughter,  and  occa- 
sionally gave  small  amounts  to  a  son.  Ilrht  tliat,  as  Uie  jury  were  authorized 
to  take  into  consideration  the  reasonable  expectation  of  her  property  being 
increased  for  the  benefit  of  her  cliildrcn,  who  were  ol  age,  and  llie  re.-usonable 

LAW  DAM. — 22 


33S  DA31AGE3    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 


EVIDENCE  OF  PECUNIARY  CONDITION  OF  BENEFICIARIES. 

138.  Evidence  of  the  pecuniary  condition  of  the  beneficia- 
ries is  inadmissible,  except 

EXCEPTION — (a)  In  some  cases  such  evidence  is  ad- 
missible to  sho-w  the  probability  of  future  gifts  be- 
ing made. 

(b)  In  Wisconsin  and  New  York  such  evidence  is  ad- 
missible in  all  cases. 

As  a  general  rule,  it  is  inadmissible  to  introduce  evidence  of  the 
poverty^-'  or  bad  health^-®  or  of  other  facts  tending  to  show  the 
necessities  of  the  beneficiaries,  since  such  facts  do  not  tend  to  prove 
that  they  have  suffered  a  pecuniary  loss.  'If  the  moral  obligation 
to  support  near  relatives,"  says  Cooley,  C.  J.,  in  Chicago  &  N.  W.  R. 

expectation  of  pecuniary  benefit  to  them  by  support  or  otlierwise,  a  verdict  of 
$1,000  was  sustained  by  the  evidence.  Tuteur  v.  Railroad  Co^  77  Wis.  505, 
46  N.  W.  897.  Decedent  was  a  widower,  73  years  old,  strong  and  vigorous, 
and  actively  engaged  in  business.  The  children  were  of  age,  and  not  depend- 
ent on  him.  Held,  that  .$1,000  was  not  excessive.  City  of  Wabash  v.  Carver, 
129  Ind.  552,  29  N.  E.  25. 

127  Illinois  Cent.  R.  Co.  v.  Baches,  55  111.  379;  Chicago  &  N.  W.  Ry.  Co. 
V.  Moranda,  93  IlL  302;  Chicago  &  N.  W.  R.  Co.  v.  Howard,  6  111.  App.  569; 
Heyer  v.  Salsbury,  7  111.  App.  93;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Henry,  Id. 
322;  Beard  v.  Slieldon,  13  111.  App.  54;  Illinois  Cent.  II.  Co.  v.  Slater,  28  111. 
App.  73,  affirmed  129  111.  91,  21  N.  E.  575;  City  of  Delphi  v.  Lowery,  74  Ind. 
520;  Overholt  v.  Vieths,  93  Mo.  422.  6  S.  W.  74;  Chicago  &  N.  W.  Ry.  Co. 
V.  Bayfield,  37  Mich.  205;  Hunn  v.  Railroad  Co.,  7S  Mich.  513,  44  N.  W.  502; 
Central  R.  R.  v.  Rouse,  77  Ga.  393,  3  S.  E.  307;  Central  R.  R.  v.  Mooie,  61 
Ga.  151.  The  Illinois  cases  on  this  subject  are  somewhat  modified  by  the 
recent  case  of  Pennsylvania  Co.  v.  Keane,  143  111.  172,  32  N.  E.  2(50,  in 
which  it  was  held  that,  in  an  action  by  the  widow  as  administratrix,  it  is 
proper  to  allow  her  to  testify  that  the  deceased  was  at  the  time  of  her  death 
her  sole  support.  The  opinion  says:  "We  take  it  that  the  rule  deducible  from 
the  cases  is  substantially  this:  that  it  is  not  competent  to  show  what  the 
pecuniary  circumstances  of  the  widow,  family,  or  next  of  kin  are  or  have  been 
since  the  decease  of  the  intestate,  but  that  it  is  competent  to  show  that  the 
wife,  children,  or  next  of  kin  were  dependent  upon  him  for  support  before  and 
at  the  time  of  his  death." 

128  Illinois  Cent.  R  Co.  v.  Baches,  supra;  Benton  v.  Railroad  Co.,  55  Iowa, 
496,  8  N.  W.  330. 


§    139)  EXPECTATION    OF    LIFE LIFE    TABLES.  339 

Co.  V.  Bayfield,  "were  to  be  the  criterion,  we  might  take  their  poverty 
into  account;  ♦  ♦  ♦  b^t  as  this  may  or  may  not  have  been 
recognized,  and,  if  recognized,  may  have  been  very  imperfectly  re- 
sponded to,  it  is  manifest  that  it  can  be  no  measure  of  the  pecuniary 
injury  the  family  received,  or  was  likely  to  receive,  from  the  death." 
But  an  exception  to  tliis  rule  is  recognized  in  some  cases  where  dam- 
ages are  based  upon  the  loss  of  prospective  gifts,  and  especially  in 
oases  for  the  benefit  of  parents  on  account  of  the  death  of  minor 
children,  as  tending  to  show  the  probability  that  such  gifts  would 
have  been  made.^-^  In  Wisconsin  ^^°  and  New  York  ^^^  such  evi- 
dence seems  to  be  admissible  in  all  cases. 

EXPECTATION  OF  LIFE— LIFE   TABLES. 

139.  Standard  life  tables  are  admissible  to  shoA^  the  ex- 
pectation of  life  of  the  deceased  and  the  beneficia- 
ries, but  they  are  not  conclusive. 

In  order  to  show  the  expectation  of  life  of  the  deceased  and  of 
the  beneficiaries  the  Carlisle,  Northampton,  and  other  standard  life 
tables  may  be  introduced;  ^^^  though  such  tables  are  not  conclusive, 

129  Potter  V.  Railway  Co.,  21  Wis.  373,  22  Wis.  615;  Ewen  v.  Railway  Co., 
38  Wis.  613;  Johnson  v.  Railway  Co.,  64  Wis.  425,  25  N.  W.  223;  Wiltse  v. 
Town  of  Tilden,  77  Wis.  152,  46  N.  W.  234;  Staal  v.  Railroad  Co.,  57  Mich. 
239,  23  N.  W.  795;  Cooper  v.  Railway  Co.,  G6  Mich.  201,  33  N.  W.  300;  Mis- 
souri Pac.  R.  Co.  V.  Peregoy,  30  Kan.  424,  14  Pac.  7;  Little  Rock,  M.  R.  &  'L\ 
Ry.  Co.  v.  Leverett,  48  Ark.  'i33,  3  S.  W.  50;  International  &  (i.  N.  R.  Co. 
V.  Kindred,  57  Tex.  491;  Illinois  Cent.  R.  Co.  v.  Crudup,  63  Miss.  291;  Chi- 
cago V.  McCulloch,  10  111.  App.  459;  Illinois  Cent.  R.  Co.  v.  Slater.  28  UL 
App.  73,  contra.  See  City  of  Chicago  v.  Powers,  42  111.  109;  Bnlliniore  &  P. 
R.  Co.  v.  Mackey,  157  U.  S.  72,  15  Sup.  Ct  49L 

130  Annas  v.  Railroad  Co.,  07  AVis.  40,  30  N.  W.  2S2;  Mcivoigue  v.  City  of 
JanesvUle,  68  Wis.  50,  31  N.  W.  298;  Thompson  v.  .Joluiston,  80  Wis.  570,  57 
^.  W.  298. 

181  See  post,  p.  344,  and  note^. 

132  Donaldson  v.  Railroad  Co.,  18  Iowa,  280;  Coatea  v.  Railroad  Co.,  02 
Iowa,  480,  17  N.  W.  7(i0;  Wordcn  v.  Railroad  Co.,  70  Iowa,  310,  41  N.  W. 
26;  Gorman  v.  Railway  Co.,  78  Iowa.  50'J,  43  N.  W.  30:?:  Louisville,  C.  &  L. 
R.  Co.  V.  Mahony's  Adm'.x,  7  Bush,  2.'?5;  Cooper  v.  Railway  Co.,  00  Midi. 
201,  33  N.  W.  300;    Iluun  v.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502;    Si«llar.s 


340  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 

since  the  jury  should  consider  them  with  the  other  evidence  in  the 
case/^^  and  may  determine  the  probable  length  of  life  solely  upon 
evidence  of  the  age,  health,  habits,  etc.,  of  the  person.^^*  The 
computation  s!iould  be  made  from  the  death  of  the  deceased;  ^^^ 
and  where,  as  in  Iowa,  the  action  is  brought  for  the  death  of  a 
minor  to  recover  damages  for  the  loss  of  benefits  that  would  have 
accrued  to  the  estate  after  his  majority,  it  is  error  to  compute  the 
expectation  from  the  age  of  21.^^°  The  calculation  of  the  amount  of 
pecuniary  loss  should  be  based  upon  the  joint  lives  of  the  deceased 
and  of  the  beneficiary,^ ^^ 

V.  Foster,  27  Neb.  118,  42  N.  W.  907;  Sauter  v.  Railroad  Co.,  6G  N.  Y.  50; 
Mississippi  &  T.  R.  Co.  v.  Ayres.  IG  Lea,  725;  San  Antonio  &  A.  P.  Ry.  Co. 
V.  Bennett,  76  Tex.  151,  13  S.  W.  319. 

133  Sclieffler  v.  Railway  Co.,  32  Minn.  518,  21  N.  W.  711;  McKeigue  v.  City 
of  JanesVille,  G8  Wis.  50,  31  N.  W.  298;  Georgia  Railroad  &  Banking 
Co.  V.  Oaks,  52  Ga,  410;  Georgia  R.  Co.  v.  Pittman,  73  Ga.  325;  Central 
R.  Co.  V.  Crosby,  74  Ga.  737;  Central  R.  Co.  v.  Thompson,  76  Ga.  770.  Where, 
mortality  tables  are  introduced,  and  no  other  evidence  is  offered  to  show  that 
the  probability  of  life  was  greater  or  less  than  that  shown  by  such  tables,  it 
was  error  to  charge  that  the  tables  were  not  controlling,  but  should  be  given 
just  such  weight  as  the  jury  thought  proper.  Nelson  v.  Railway  Co.  (Mich.) 
62  N.  W.  993. 

134  Beems  v.  Railway  Co.,  67  Iowa,  435,  25  N.  W.  G93;  Deisen  v.  Railway 
Co.,  43  Minn.  454,  45  N.  W.  864;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Compton,  75  Tex. 
667,  13  S.  W.  667.  Where  the  court  erroneously  gives  positive  directions  for 
ascertaining  the  damages  by  certain  mathematical  calculations,  the  error  is 
not  cured  by  the  subsequent  statement  that  in  the  end  the  whole  matter  of 
damages  is  left  entirely  to  the  sound  judgment  of  the  jury  as  to  what  is  prop- 
er under  all  the  circumstances.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Needham,  ;;• 
C.  C.  A.  129,  52  Fed.  371. 

135  Plaintiff's  intestate  being  only  five  years  old  at  the  time  of  his  death,  it 
was  error  to  admit  in  evidence  tables  giving  no  expectancy  of  life  for  any  ago 
under  ten  years.  Rajnowski  v.  Railroad  Co.,  74  Mich.  15,  20,  41  N.  W.  847, 
S^9. 

136  Walters  v.  Railroad  Co.,  41  Iowa,  71;  Wheolan  v.  Railway  Co.,  85  Iowa, 
167,  .52  N.  W.  119. 

137  Rowley  V.  Railway  Co.,  L.  R.  8  Exch.  221,  42  Law  J.  Exch.  153,  29  Law- 
T.  (N.  S.)  ISO;   Illinois  Cent.  R.  Co.  v.  Crudup,  63  Miss.  291. 


§    141)  REDUCTION    OF    DAMAGES.  341 


INTEKEST  AS  DAMAGES. 

140.  Interest  as  damages  cannot  be  recovered,  except 
EXCEPTION— In  New  York,  by  statute,  the  amount  re- 
covered draws  interest  from  the  death. 

While  the  jury  may,  perhaps,  take  into  account  the  time  which 
has  elapsed  since  the  death,  as  affecting  the  amount  of  damages, 
it  is  improper  for  them,  after  computing  the  amount  of  damages,  to 
add  interest  upon  that  sum.^^^  The  New  York  act  provides  that  the 
amount  recovered  shall  draw  interest  from  the  death,  which  interest 
shall  be  added  to  the  verdict,  and  inserted  in  the  entry  of  judg- 
ment. This  provision  is  not  unconstitutional.^^^  The  rate  of  in- 
terest is  governed  by  the  statute  regulating  interest  in  force  at  the 
time  of  the  verdict.^*"  The  interest  is  to  be  added  and  inserted  by 
the  clerk.^*^ 

REDUCTION  OF  DAMAGES. 

141.  Property  received  by  descent  or  otherw^ise  upon  the 

death  of  the   deceased   cannot   be  considered  in  re- 
duction of  damages. 

Where  the  beneficiary  acquires  property  by  descent  or  otherwise 
upon  the  death  of  the  deceased,  it  is  not  proper  for  the  jury  to  reduce 
the  damages  on  that  account;  ^*^  for  it  may  fairly  be  assumed  that 
the  beneficiary  would,  in  the  natural  course  of  events,  have  acquir- 
ed the  property  ultimately,  and  his  damages  are  for  the  loss  of  bene- 
fits which  he  might  have  received  during  the  remainder  of  the  life 

i"8  Central  R.  Co.  v.  Sears,  6G  Ga.  499;  Cook  v.  Railroad  Co.,  10  llun.  4l'i; 
<before  act  of  1870). 

139  Cornwall  v.  Mills,  44  N.  Y.  Super.  Ct  45. 

140  Salter  v.  Railroad  Co.,  8G  N.  Y.  401;  Id.,  23  Hun,  ;"»33,  overruling'  l^rwiii 
V.  Steamboat  Co.,  23  iluu,  .j78. 

141  See  Manning  v.  Iron  Ore  Co.,  91  N.  Y.  GG5,  reversing  27  Ilun,  219.  An 
■extra  allowance  should  be  computed  on  the  sum  awarded  l)y  the  jury  plus 
the  interest  inserted  in  the  entry  of  judgment.  Boyd  v.  Railroad  Co..  0  Civ. 
Proc.  R'.  222;  1  IIow.  Prac.  (N.  S.)  1.  Contra,  Sinix'  v.  City  of  New  York.  8 
Civ.   Proc.   R.  2.72,  note. 

142  See  San  .\ntouio  i<.  A,  P.  Ky.  Cu.  v.  Long,  S7  Te.x.  MS,  27  S.  W.  113. 


S42  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (CIl.    12 

of  tlio  deceased,  or  of  the  accumulations  which  the  deceased  might 
have  added  to  his  estate,  and  which  the  beneficiary  would  have  ac- 
(luir(Hl,  in  addition  to  the  estate  existing  at  the  time  of  the  prema- 
ture death.  Thus,  in  Terry  v.  Jewett,^*^  it  was  held  that  it  was  not 
error  to  refuse  to  charge  the  jury  that  they  might  take  into  con- 
sideration that  the  plaintiff  would  be  entitled  to  the  property  of  the 
deceased  as  next  of  hin.  A  distinction  was  suggested  in  Grand 
Trunk  Ry.  Oo.  of  Canada  v.  Jennings,^**  by  Lord  Watson,  who  said: 
'TVToney  provisions  made  by  a  husband  for  the  maintenance  of  a 
widow,  in  whatever  form,  are  matters  proper  to  be  considered  by  the 
jury  in  estimating  her  loss;  but  the  extent,  if  any,  to  which  these 
ought  to  be  imputed  in  reduction  of  damages,  must  depend  upon  the 
nature  of  the  provision,  and  the  position  and  means  of  the  deceased. 
When  the  deceased  did  not  earn  his  own  living,  but  had  an  income 
from  property,  one  half  of  which  had  been  settled  upon  his  widow, 
a  jury  might  reasonably  come  to  a  conclusion  that,  to  the  extent  of 
that  half,  the  widow  was  not  a  loser  by  his  death,  and  might  proper- 
ly confine  their  estimate  of  her  loss  to  the  interest  which  she  might 
probably  have  had  in  the  other  half." 

Similarly,  where  the  beneficiary  receives  money  on  account  of  an 
insurance  policy  on  the  life  of  the  deceased,  this  fact  is  not  to  be 
considered  in  reduction  of  damages.^*^  In  England,  however,  it 
has  been  held  that  the  jury  may  properly  take  into  consideration  the 
probable  amount  of  future  premiums  which  would  have  been  pay- 
able during  the  life  of  the  deceased.^*®     Says  Lord  Watson  in  Grand 

143  78  N.  Y.  338,  17  Hun,  305.  It  is  error  to  permit  the  plaintiff  to  show 
lliat  her  intestate  left  no  property.  Koosorowslia  v.  Glasser  (Super.  Buff.)  8 
X.  Y.  Supp.   197. 

14*13  App.  Cas.  800,  58  Law  J.  P.  C.  1,  59  Law  T.  (N.  S.)  G79,  37  Wkly. 
Rep.  403.     See  Pyin  v.  Railway  Co.,  supra. 

1*6  Althorp  V.  Wolfe,  22  N.  Y,  355;  Kellogg  v.  Railroad  Co.,  79  N.  Y.  72; 
Sherlock  v.  Ailing,  44  Ind.  184;  Carroll  v.  Railway  Co.,  88  Mo.  239;  North 
Pennsylvania  R.  Co.  v.  Kirk,  90  Pa.  St.  15;  Coulter  v.  Pine  Tp.,  1(M  Pa.  St. 
543,  30  Atl.  490;  Baltimore  &  O.  R.  Co.  v.  Wightman,  29  Grat.  431;  Western 
&  A.  R.  Co.  V.  Meigs,  74  Ga.  857.  See  Harding  v.  Townshend,  43  Vt.  53G. 
Beckett  v.  Railway  Co.,  8  Ont  601,  13  Ont.  App.  174,  contra. 

146  Hicks  V.  Railway  Co.,  4  Best  &  S.  403,  note.  See  Bradburn  v.  Railroad 
Co.,  44  Law  .T.  Exch.  9,  L.  R.  10  Exch.  1,  per  Bramwell,  B.;  Grand  Trunk  Ry. 
Co.  V.  Jennings,  supra;   Jennings  v.  Railway  Co.,  15  Out.  App.  477. 


§    142)  DISCRETION   OF   JURY.  343 

Trunk  Ry.  Oo.  v.  Jennings:  "The  pecuniary  benefit  which  accrued 
to  the  respondent  from  his  premature  death  consisted  in  the  accelC' 
rated  receipt  of  a  sum  of  money,  the  consideration  of  which  had  been 
paid  by  him  out  of  his  earnings.  In  such  case  the  extent  of  the 
benefit  may  fairly  be  taken  to  be  represented  by  the  use  and  interest 
of  the  money  during  the  period  of  acceleration;  and  it  was  upon 
that  footing  that  Lord  Campbell,  in  Hicks  v.  Newport,  A.  H.  Ry. 
Ck).,  suggested  to  the  jury  that,  in  estimating  the  widow's  loss,  the 
benefit  which  she  derived  from  accelei'ation  might  be  compensated 
by  deducting  from  their  estimate  of  the  future  earnings  of  the  de- 
ceased the  amount  of  the  premiums  which,  if  he  had  lived,  he  would 
have  had  to  pay." 

Since  the  right  of  action  vests  upon  the  death  of  the  deceased, 
it  is  not  permissible  to  show  that  pecuniary  benefits  have,  from 
another  source,  subsequently  accrued  to  the  beneficiary,  which  are 
equivalent  to  those  of  which  he  has  been  deprived.  Thus,  in  an 
action  for  the  death  of  a  wife  and  mother,  evidence  that  the  hus- 
band had  again  married,  and  that  his  second  wife  performed  like 
services  to  those  performed  by  the  deceased,  is  inadmissible  in  miti- 
gation of  damages.^*' 

DISCRETION  OF  JURY. 

142.  The  jury  have  a  large  discretion  in  the  assessment  of 
damages. 

From  the  indefinite  nature  of  the  proof  of  pecuniary  loss  possible 
in  such  cases,  much  is  left  to  the  discretion  and  judgment  of  the 
jury,  and  it  is  not  improper  to  instruct  them  to  that  effect.^**  But 
such  an  instruction  should  not  be  given  without  charging  them  defi- 

14T  Davis  V.  Guarnieri,  45  Ohio  St.  470,  35  N.  E.  350;  Gcorsia  Railroad  & 
Banking  Co.  v.  Garr,  57  Ga.  277.  It  is  improper  on  cross-ex;uiiiii;itinn  to  asU 
the  husband  if  he  is  not  engaged  to  be  ni;irri<(l  iigaiu.  Dinmicy  v.  K;iilroa<l 
Co.,  27  W.  Va.  32. 

148  Illinois  Cent.  R.  Co.  v.  Barron,  5  Wall.  90;  Chicago  &  X.  W.  Ry.  Co,  v. 
Whitton,  13  Wall.  270;  I'ennsylvania  U.  Co.  v.  Ogier,  35  Pa.  St.  (JO;  City  of 
Vicksburg  v.  McLain.  67  Miss.  4,  G  South.  774;  Kansas  I'ac.  R.  Co.  v.  Cutter, 
Ifi  Kan.  83. 


344  DAMAfiES    FOR    DKATH    BY    WRONGFUL    ACT.  (Cll.    12 

nitoly  upon  IIr'  propiT  moasiire  of  damages  in  the  particnlar  case/** 
and  instructing  them  that  the  damages  must  be  based  upon  the 
evidence,^'*'*  and  upon  the  pecuniary  injury  to  the  beneficiaries;  ^^^ 
though,  as  has  been  shown,  much  is  left,  especially  in  actions  for 
the  death  of  minor  children,  to  the  jury's  knowledge  and  experi- 
ence.^^^ 

New  York  Rule. 

A  looser  rule  in  respect  to  the  measure  of  damages  prevails  in 
New  York  than  elsewhere,  under  similar  statutory  provisions;  for 
in  that  state  it  is  held  in  all  cases  that  it  is  enough  for  the  plaintiff 
to  show  the  age,  sex,  condition,  physical  and  mental,  and  the  cir- 
cumstances and  situation  in  life  of  the  deceased,  and  the  age,  cir- 
cumstances, and  condition  of  the  next  of  kin,  and  that,  provided  such 
evidence  is  introduced,  it  is  for  the  jury  to  estimate  the  "pecuniary 
injuries,"  present  and  prospective,  to  the  next  of  kin.^^^  This  rule 
differs  little,  if  at  all,  from  the  rule  elsewhere  applied  in  actions 
brought  by  parents  for  the  death  of  young  children,  but  in  New 
York  the  rule  is  also  applied  in  cases  in  which  the  only  possible 
basis  for  damages  would  seem  to  be  the  loss  of  prospective  gifts, 
or  of  a  prospective  inheritance, — cases  in  which,  in  other  jurisdic- 
tions, some  evidence  either  of  past  gifts,  or  of  the  probability  of 
future  accumulations,  is  usually  required.      Thus,  in  Tilley  v.  Kail- 

149  Pennsylvania  R.  Co.  v.  Ogier,  supra;  Pennsylvania  R.  Co.  v.  Vandevor. 
36  Pa.  St.  298;  Catawissa  R.  Co.  v.  Armstrong,  52  Pa.  St.  282;  Parsons  v. 
Railway  Co.,  04  Mo.  280,  0  S.  W.  404.  The  fact  that  the  damages  are  larger 
than  would  probably  upon  the  testimony  have  been  found  by  the  court  is 
not  ground  for  reversal.  Missouri  Pac.  R.  Co.  v.  Lee,  70  Tex.  49G,  7  S.  W. 
857. 

iBo  Chicago  &  N.  W.  R.  Co.  v.  Swett,  45  111.  197;  Chicago  &  A.  R.  Co.  v. 
Shannon,  43  111.  338;  North  Chicago  R.  M.  Co.  v.  Morrissey,  111  111.  G4(); 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Dowd,  115  111.  659,  4  N.  E.  368.  And  see  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Sykes,  96  111.  162;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Austin. 
69  111.  426;  Conant  v.  Griffin,  48  111.  410;  Lake  Shore  &  M.  S.  R.  Co.  v.  Parker, 
131  111.  557,  23  N.  E.  237. 

151  Chicago  &  A.  R.  Co.  v.  Becker,  76  111.  25;  Chicago.  B.  &  Q.  R.  Co.  v. 
Harwood,  80  111.  88. 

152  City  of  Chicago  v.  Scholteu,  75  111.  468;  Ohio  &  M.  Ry.  Co.  v.  Voight, 
122  Ind.  288.  23  N.  E.   774. 

153  See  note  83,  supra. 


%    142)  DISCRETION    OF    JURY.  345 

road  Co./"  it  was  held  that  damages  for  the  loss  of  the  training, 
instruction,  and  education  of  a  mother  were  not  confined  to  minor 
children.  The  opinion  by  Hogeboom,  J.,  upon  the  measure  of  dam- 
ages, is  frequently  referred  to  with  approval.^'*^  The  jury,  he  says, 
''are  to  give  such  damages  as  they  shall  deem  a  fair  and  just  com- 
pensation, with  reference  to  the  pecuniary  injuries  resulting  from 
«uch  death.  They  are  not  tied  down  to  any  precise  rule.  Within 
the  limit  of  the  statute,  as  to  the  amount  and  the  species  of  injury 
sustained,  the  matter  is  to  be  submitted  to  their  sound  judgment 
and  sense  of  justice.  They  must  be  satisfied  that  pecuniary  in- 
juries resulted.  If  so  satisfied,  they  are  at  liberty  to  allow  them 
from  whatever  source  they  actually  proceeded,  which  could  produce 
them.  If  they  are  satisfied,  from  the  history  of  the  family,  or  the 
intrinsic  probabilities  of  the  case,  that  they  were  sustained  by  the 
loss  of  bodily  care  or  intellectual  culture  or  moral  training  which 
the  mother  had  before  supplied,  they  are  at  liberty  to  allow  for  it. 
The  statute  has  set  no  bounds  to  the  sources  of  these  pecuniary  in- 
juries." ^°^     In  Lockwood  v.  Railroad  Co.  ^^^  the  trial  court  refused 

154  29  N.  Y.  252,  24  N.  Y.  471. 

i55McIntyre  v.  Railroad  Co.,  37  N.  Y.  287,  affirming  47  Barb.  515.  In  this 
€ase  the  deceased  was  a  widow  about  48  years  old,  who  left  three  children, 
all  of  age,  one  a  married  daughter  with  whom  she  lived.  She  was  a  seam- 
stress, capable  of  earning  $1  a  day  above  her  board,  and  left  only  a  small 
amount  of  property.  She  had  been  in  the  habit  of  making  small  articles  of 
clothing  for  her  children  from  time  to  time.  A  verdict  for  $3,500  was  re- 
duced to  $1,500,  and  :ni  appeal  sustained  for  that  amount.  A  nonsuit  was 
granted  at  a  former  trial,  and  overruled  in  43  Barb.  532.  See,  also,  Keller  v. 
Railroad  Co.,  2  Abb.  Dec.  480,  24  How.  Prac.  172;  aihrming  Id.  17  liow.  I'rac. 
102,  28  Barb.  44. 

158  See,  geuerally,  Dickens  v.  Railroiid  Co.,  1  Abb.  Dee.  504;  Thomas  v.  Rail- 
road Co.,  6  Civ.  Proc.  R.  353;  Lustig  v.  Railroad  Co.,  65  Hun,  547,  20  N.  Y. 
Supp.  477;  Bicrliaucr  v.  Railroad  Co..  15  Hun,  55".),  affinnod  in  77  N.  Y.  588. 
The  deceased  was  an  engineer,  industrious  and  faithful  to  his  mother, 
who  was  his  next  of  kin.  H(l<l,  that  a  verdict  iov  .'i;5,(>(K)  was  not  excessive. 
Erwin  v.  Steamboat  Co.,  23  llun,  573;  Quiun  v.  Power,  20  llun,  183.  Dece- 
dent was  a  single  woman  30  j^eais  old,  witho\il  otlier  near  relatives  than  her 
parents,  who  were  GG  and  58  years  old.  Both  were  i)oor,  and  the  father  inlirm. 
and,  for  20  years  decedent  had  contributed  $.'5(J0  (tr  $100  per  annum  to  their 
support.    She  was  in  good  health,  and  receiving  a  salary  of  $8  or  $9  per  week. 


157  08  X.  Y.  523. 


346  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Cll.    12 

to  charge  that  where  the  children  are  of  full  age,  and  living  away 
from  home,  and  self-supporting,  no  such  pecuniary  loss  has  been, 
sustained  by  them  as  can  be  recovered.  It  was  said  on  appeal: 
'^Tiatever  the  rule  may  be  in  other  states,  there  are  many  cases 
in  this  which  in  principle  sustain  the  rulings  of  the  trial  judge. 
•  ♦  *  In  but  few  cases  arising  under  this  act  is  the  plaintiff 
able  to  show  direct,  specific  pecuniary  loss,  ♦  ♦  *  and  generally 
the  basis  for  the  allowance  of  damages  has  to  be  found  in  the  proof 
of  the  character,  qualities,  capacity,  and  condition  of  the  deceased^ 
and  in  the  age,  sex,  circumstances,  and  condition  of  the  next  of  kin. 
The  proof  may  be  unsatisfactory,  and  the  damages  may  be  quite  un- 
certain and  contingent;  yet  the  jurors  in  each  case  must  take  the 
elements  thus  furnished,  and  make  the  best  estimate  of  damages 
they  can.  There  seems  to  be  no  other  mode  of  administering  the 
statute  referred  to,  and  protection  against  excessive  damages  must 
be  found  in  the  power  of  courts  in  some  of  the  modes  allowed  by  law 
to  revise  or  set  aside  the  verdicts  of  juries."  ^^* 

Held,  that  a  verdict  for  $4,000  damages  was  not  excessive.  Bowles  v.  Railroad 
Co.,  46  Hun,  324.  In  Kelly  v.  Railway  Co.,  14  Daly,  418,  the  only  relatives 
of  the  deceased  were  a  brother  and  sister  in  Ireland,  and  three  nephews  in 
New  York.  There  was  no  evidence  that  he  ever  did  anything  to  assist  them, 
nor  was  it  shown  what  the  proceeds  of  his  business  were,  nor  what,  if  any- 
thing, was  the  value  of  his  life  to  his  next  of  kin.  A  verdict  of  $1,000  was  held 
not  excessive.  The  court  points  out  that  the  courts  of  New  York  have  not 
discriminated  between  the  immediate  and  collateral  kindred,  and  that  in  other 
states  proof  is  necessary  tliat  the  relatives  had  received  or  were  likely  to  re- 
ceive support  from  the  deceased.  But  where  no  facts  appeared  except  that  the 
deceased  was  a  married  woman  aged  20  years,  and  a  verdict  of  $4,000  was 
rendered,  it  was  held  that  a  new  trial  should  be  granted.  Mitchell  v.  Railroad 
Co.,  2  Hun,  535. 

168  How  slight  is  the  protection  thus  afforded  is  illustrated  by  Pineo  v. 
RaUroad  Co.,  34  Hun,  SO,  which  was  an  action  brought  by  the  brother  as  ad- 
ministrator of  a  girl  of  14,  whose  next  of  kin  was  supposed  to  be  her  father, 
who  had  abandoned  his  family  years  before,  and  concerning  whom  it  was 
not  known  whether  he  was  alive  or  dead.  It  was  held  that  a  refusal  to  charge 
that  there  was  no  evidence  that  the  life  of  deceased  had  any  pecuniary  value 
to  her  father  was  not  error,  and  that  a  verdict  of  $3,500  should  not  be  set 
aside  as  excessive.  In  a  dissenting  opinion.  Barker,  J.,  pertinently  remarks: 
"If  we  uphold  this  verdict,  we  do,  in  effect,  say  that  the  jury  are  omnipotent 
in  this  class  of  cases,  and  that  there  is  no  rule  of  law  to  be  observed  by  them 
in  assessing  damages." 


§    1-12)  DISCRETION   OF   JUBY.  347 

Exccssice  Verdict — Reduction  of  Amount. 

In  cases  where  the  amount  of  the  verdict  is  deemed  by  the  court 
to  be  excessive,  it  is  a  common  practice  to  allow  the  verdict  to 
stand  upon  condition  that  the  plaintiff  remit  a  part  of  the  sum 
awarded.^ ^^  In  Wisconsin,  however,  it  is  held  that  this  practice 
is  allowable  only  when  the  illegal  portion  of  the  judgment  is  readily 
severable  from  the  rest,  and  hence  there  can  be  no  remittitur 
in  actions  for  death;  ^®°  and  this  view  has  been  in  several  cases 
maintained  in  dissenting  opinions.^®^ 

Inadequate  Verdict. 

Where  the  damages  are  inadequate,  the  court  may,  in  its  discre- 
tion, set  the  verdict  aside,  and  order  a  new  trial.^*^ 

159  pym  V.  Railway  Co.,  2  Best  &  S,  759,  31  L.  J.  Q.  B.  249,  10  Wkly.  R. 
737,  6  L.  T.  (N.  S.)  537,  8  Jur.  (N.  S.)  819;  Id.,  4  Best  &  S.  390,  32  L.  J.  Q. 
B.  377,  11  Wkly.  R.  922,  10  Jur,  (N.  S.)  199;  Little  Rock  &  F.  S.  Ry.  Co.  v. 
Barker,  39  Ark.  491;  Central  R.  R.  v.  Crosby,  74  Ga.  737;  Rose  v.  Railroad 
Co.,  39  Iowa,  246;  Hutcbins  v.  Railway  Co.,  44  Minn.  5,  46  N.  W.  79;  Smith 
V.  Railway  Co.,  92  Mo.  360,  4  S.  W.  129;  Demarest  v.  Little,  47  N.  J.  Law,  28; 
Mclntyre  v.  Railroad  Co.,  37  N.  Y.  287.  For  recent  cases  discussing  amount  of 
damages  properly  allowed,  see  Nickerson  v.  Bigelow  (D.  C.)  62  Fed.  900;  Farm- 
ers' L.  &  T.  Co.  V.  Toledo,  A.  A.  &  N.  M.  Ry.  Co.  (C.  C.)  67  Fed.  73;  Weller  v. 
Railway  Co.,  120  Mo.  635,  23  S.  W.  1061,  and  25  S.  W.  522;  RUey  v.  Transit 
Co.,  10  Utah,  428,  37  Pac.  681;  San  Antonio  St  Ry.  Co.  v.  Watzlazick  (Tex. 
Civ.  App.)  28  S.  W.  115;  Austin  Rapid  Transit  Ry.  Co.  v.  CuUen  (Tex.  Civ. 
App.)  29  S.  W.  250;  Id.,  30  S.  W.  578;  Taylor,  B.  &  H.  Ry.  Co.  v.  Warner 
(Tex.  Civ.  App.)  31  S.  W.  06;  Baltimore  &  O.  R.  Co.  v.  Stanley,  54  111.  App. 
215;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Hughes,  55  Kan.  491,  40  Pac.  919;  Welch 
v.  Railroad  Co.,  86  Me.  552,  30  Atl.  116;   Johnson  v.  Railroad  Co.,  80  Hun,  300, 

30  N.  Y.  Supp.  318;  Texas  &  P.  Ry.  Co.  v.  Hudman  (Tex.  Civ.  App.)  28  S. 
W..388;  Mexican  Nat  R.  Co.  v.  Finch  (Tex.  Civ.  App)  27  S.  W.  102S;  St 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Sweet  00  Ark.  550,  31  S.  W.  571;  Nelson  v.  Rail- 
way Co.  (Mich.)  62  N.  W.  993;  International  &  G.  N.  R.  Co.  v.  McNeel  (Tex. 
Civ.  App.)  29  S.  W.  1133;    Gulf,  C.  &.  S.  F.  Ry  Co.  v.  Johnsuu  (Tex.  Civ.  App.) 

31  S.  W.  255. 

180  Potter  V.  Railroad  Co.,  22  Wis.  615. 

181  LitUe  Rock  &  F.  S.  Ry.  Co.  v.  Barker,  39  Ark.  491;  Central  R.  R.  v. 
Crosby,  74  Ga.  737;    Rose  v.  Railroad  Co.,  39  Iowa,  240. 

i62Marianl  v.  Dougherty,  40  Cal.  27;  Wolford  v.  INIining  Co.,  63  Cal.  4S:J; 
.Tames  v.  I{aiIroii(l  Co.,  !»2  .Ma.  231,  9  South.  335.  See  Spriugctt  v.  Balls,  7 
Best  &  S.  477,  4  Fost  &  F.  472. 


o4i>  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Ch.    12 


NOMINAL  DAMAGES. 

143.  The  cases  are  not  agreed  as  to  •whether  or  not,  in  the 
absence  of  actual  pecuniary  loss,  nominal  damages 
may  be  recovered. 

Since  the  damages  are  based  upon  the  pecuniary  loss  of  the  bene- 
ficiaries, it  would  seem  to  follow  that,  if  there  is  no  pecuniary  loss, 
the  action  cannot  be  maintained  for  the  recovery  even  of  nominal 
damages.  This  has  been  intimated  in  England,^ "^^  and  held  in 
Michigan,^®*  Texas,^^^  and  Wisconsin. ^*^^  Thus,  in  Duckworth  v. 
Johnson,  Pollock,  C.  B.,  said:  "If  there  was  no  damage  the  action 
is  not  maintainable.  It  appears  to  me  that  it  was  intended  by  the 
act  to  give  compensation  for  damage  sustained,  and  not  to  enable 
persons  to  sue  in  respect  of  some  imaginary  damage,  and  so  punish 
those  who  are  guilty  of  negligence  by  making  them  pay  costs." 
And  in  Hurst  v.  Detroit  City  Ry.  Co.,  Long,  J.,  said:  "The  statute 
does  not  imply  that  damages  and  pecuniary  loss  necessarily  flow 
from  the  negligent  killing."  On  the  other  hand,  it  has  been  held,  or 
rather  intimated,  in  a  great  number  of  cases,  that  damages  do  neces- 
sarily flow  from  the  negligent  killing,  and  that  whenever  there  is 
proof  of  the  negligence  of  the  defendant,  and  of  the  existence  of 
next  of  kin,  the  action  lies  for  at  least  nominal  damages;  ^*^^  al- 

163  Duckworth  v.  Johnson,  4  Hurl.  &  N.  653,  29  L.  J.  Exch.  25,  5  Jur.  (N. 
S.)  630.  See  Boulter  v.  Webster,  13  Wldy.  R.  289,  11  L.  T.  (N.  S.)  598.  In  the 
earlier  case  of  Chapman  v.  Rothwell,  EL,  Bl.  &  El.  168,  Crompton,  J.,  had  said 
that  section  1  of  Lord  Campbell's  act  appears  to  contemplate  giving  damages, 
wherever  the  party  injured  could  have  recovered  them,  whetlier  nominal  or 
not.  The  jury  found  a  verdict  of  £1  for  the  widow,  and  10s.  for  each  of  the 
children.  The  court  granted  a  new  trial,  without  imposing  costs  on  the  plain- 
tiff, on  the  ground  that  the  jury  had  shrunk  from  their  duty  of  deciding  the 
issue.     Springett  v.  Balls,  7  Best  &,  S.  477,  4  Fost.  &  F.  472. 

164  Hurst  V.  Railway  Co.,  84  Mich.  539,  48  X.  W.  44;  Van  Brunt  v.  Railroad 
Co.,  78  Mich.  530,  44  N.  W.  321;  Charlevois  v.  Railroad  Co.,  91  Mich.  59,  51 
N.  W.  812. 

i65McGown  V.  RaUroad  Co.,  85  Tex.  289.  20  S.  W.  80. 
iGG  Regan  v.  Railway  Co.,  51  Wis.  599,  8  N.  W.  292. 

1C7  Chicago  &  A.  R.  Co.  v.  Shannon,  43  III.  '538;  Chicago  &  X.  W.  R.  Co.  v. 
Swett,  45  lU.  197;    Chicago  v.  Scholteu,  75  111.  4G8;    Quincy  Coal  Co.  v.  Hood. 


§    144)  ALLEGATION    OF    DAMAGES.  349' 

though  the  question  of  nominal  damages  has  in  few  cases  been  actu- 
ally involyed  in  the  decision.^ ^^ 


ALLEGATION    OF   DAMAGES. 

144.  Substantial  damages  may  be  recovered  under  the  gen- 
eral ad  damnum  in  those  jurisdictions  where  nom- 
inal damages  may  be  recovered,  i.  e.  ^vhere  some 
damages  are  presumed.  In  jurisdictions  -where 
nominal  damages  cannot  be  recovered,  the  damages 
must  be  specially  pleaded. 

As  has  been  stated,  it  is  held  in  s(5me  jurisdictions  that  the  stat- 
ute necessarily  implies  pecuniary  loss  to  the  beneficiaries  from  the 
death,  and  that  the  action  can  consequently  be  maintained  in  the 
absence  of  pecuniary  loss  for  at  least  nominal  damages;  while  in 
other  jurisdictions  it  is  held  that,  without  pecuniary  loss,  the  ac- 
tion is  not  maintainable,  even  for  nominal  damages.^°*  In  the  latter 
jurisdictions  it  appears  to  be  necessary  to  allege  in  the  complaint 
the  facts  showing  pecuniary  loss.  Thus,  in  Michigan  it  Is  said  that 
the  damages  are  special,  and  that  it  must  be  made  to  appear  by 
proper  allegations  that  pecuniary  loss  necessarily  resulted.^ ^°  And 
in  Wisconsin  it  is  held  that  the  complaint  must  allege  facts  show- 
ing that  loss,  present  or  prospective,  has  resulted,^^^  although  in 

77  111.  68;  Quin  v.  Moore,  15  N.  Y.  432;  Dickens  v.  Railroad  Co.,  1  Abb.  Dec. 
504;  Ihl  V.  Railway  Co.,  47  N.  Y.  317;  Lehman  v.  City  of  Brooklyn,  29  Barb. 
234;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Weber,  33  Kan.  543,  G  Pac.  877;  Thomp. 
Neg.  p.  1293.  The  jury  are  not  restricted  to  an  award  of  nominal  damages 
only,  because  the  evidence  fails  to  show  with  any  certainty  the  extent  of  a  sis- 
ter's pecuniary  loss,  where  she  had  been  partly  supported  by  deceased.  Ohio 
&  M.  Ry.  Co.  V.  Wangelin,  1.52  111.  138,  38  N.  E.  760.  See,  also.  North  Chicago 
St  R.  Co.  V.  Brodie,  l."j(i  111.  317,  40  N.  E.  942. 

168  Lyons'  Adm'r  v.  Railroad  Co.,  7  Ohio  St.  o36;  Kenney  v.  Railroad  Co.,  49 
Hun,  535.  2  N.  Y.  Supp.  512;  Korrady  v.  Railway  Co.,  131  lud.  261,  29  N.  E. 
1009. 

188  See  ante,  p.  348. 

170  Hurst  V.  Railway  Co.,  84  Mich.  539,  48  N.  W.  44. 

171  Regan  v.  Railway  Co..  51  Wis.  599,  S  X.  W.  :i92.  But  In  Ewon  v.  Rail- 
road Co.,  38  Wis.  613,  where  an  element  in  the  pecuniary  injury  was  I  lie  loss 


350  DAMAGES    FOR    DEATH    BY    WRONGFUL    ACT.  (Cll.    12 

the  latter  state,  where  the  complaint  showed  that  the  deceased  was 
a  laboring  man,  working  for  the  defendant  (without  alleging  that 
he  received  any  compensation),  and  that  he  left  a  child  of  three 
years,  it  was  held  on  demurrer  that  it  sufficiently  showed  that  the 
child  had  suffered  pecuniary  loss.^'^* 

On  the  other  hand,  in  jurisdictions  where  it  is  held  that  nominal 
damages  necessarily  result  from  the  death,  it  seems  that  a  complaint 
is  good  on  demurrer  although  it  does  not  allege  more  than  the  death 
and  the  survival  of  beneficiaries.  Thus,  in  New  York,  in  an  action 
for  the  benefit  of  a  widow,  the  complaint  was  held  good  on  demurrer 
notwithstanding  that  it  contained  no  allegations  that  damages  had 
been  sustained,  although  the  court  declined  to  express  an  opinion 
whether,  without  further  allegations,  proof  of  substantial  damages 
would  be  admissible,^ ^^  And,  in  an  Indiana  case,  a  complaint  which 
showed  that  the  deceased  left  a  widow  and  infant  children  surviving 
was  held  good  on  demurrer  although  it  did  not  directly  allege  that 
tho  beneficiaries  sustained  actual  damages;  the  court  saying  that 
the  legal  presumption  is  that  the  infant  children  and  wife  are  en- 
titled to  the  services  of  a  father  and  husband,  and  that  such  services 
are  valuable  to  them.^'^*  In  order  to  allow  proof  of  damages  in 
these  jurisdictions,  it  appears  to  be  sufficient  to  allege  that  the  bene- 
ficiaries have  sustained  damages  in  a  certain  amount^'''  It  has 
been  held  in  Indiana,  however,  in  an  action  by  a  father  for  the  death 
of  a  minor  child,  that,  in  order  to  recover  for  loss  of  services  beyond 

of  SI  pension  cut  off  by  the  death  of  deceased,  it  was  held  uuuccessary  to  al- 
lege this  fact  in  order  to  admit  proof  of  it. 

1T2  Kelley  v.  Railway  Co.,  50  Wis.  381,  7  N.  W.  291. 

1T8  Kenney  v.  Railroad  Co.,  49  Hun,  535,  2  N.  Y.  Supp.  512. 

174  Korrady  v.  Railway  Co.,  131  Ind.  261,  29  N.  E.  1069. 

ITS  Safford  v.  Drew,  3  Duer,  627;  Louisville,  N.  A.  &  a  Ry.  Co.  v.  Buck,  116 
Ind.  566,  19  N,  E.  453;  Barron  v.  Railroad  Co.,  1  Biss.  412,  Fed.  Cas.  No. 
1,052;  Serensen  v.  Railroad  Co.,  45  Fed.  407;  Barnum  v.  Railway  Co.,  30  Minn. 
461,  16  N.  W.  364.  See,  also,  Westcott  v.  Railroad  Co.,  61  Vt.  438,  17  Atl. 
745;  Ewen  v.  Railroad  Co.,  supra;  Kenney  v.  Railroad  Co.,  supra.  The  dec- 
laration averred  that  by  the  death  the  widow  and  minor  children  were  de- 
prived of  their  support  and  the  children  of  their  means  of  education,  to  the 
damage,  etc.  Hrhl,  that  such  averments  were  sufficient  to  admit  evidence  of 
the  ability  of  deceased  to  earn  money.  Chicago  &  A.  Ry.  Co.  v.  Carey,  115  111. 
115,  3  N.  E.  519. 


§    144)  ALLEGATION    OF    DAMAGES.  351 

the  date  of  the  beginning  of  suit,  such  damages  must  be  specially 
averred.^^'  And  a  California  case  has  held  that  damages  for 
funeral  expenses,  if  recoverable  at  all,  must  be  specially  alleged.^^"' 

176  Pennsylvania  Co.  v.  Lilly,  73  In<L  252. 
117  Gay  V.  Winter,  34  CaL   153. 


352  WRONGS    AFFECTING    REAL   PROPERTY.  (.Cli.    13 

CHAPTER   Xm. 

WRONGS  AFFECTING  REAL  PKOPERTY. 

145-147.  Damages  for  Detention  of  Real  Property. 

148.  Damages  for  Detention  of  Dower. 

149-150.  Injuries  to  Real  Property— Trespasses. 
151-152.  Nuisance, 

153-154.  Waste. 

155.  Contracts  to  Soil  Real  Property— Broach  by  Vendor. 

156.  Breach  by  Vendee. 

157.  Breach  of  Covenants— Seisin  and  Right  to  Convey. 

158.  Warranty  and  Quiet  Enjoyment. 

159.  Against  Incumbrances, 
IGO.  Covenants  in  Leases. 

DAMAGES  FOR  DETENTION  OF  REAL  PROPERTY. 

145.  In  actions  to  recover  the  possession  of  real  property, 

the  measure  of  damages  is  the  annual  value  of  the 
land,  with  interest,  less  necessary  expenses  paid  by 
the  occupant,  and  the  value  of  improvements  made 
by  him  in  good  faith. 

146.  The   occupant  is  liable  for  the   profits  for  the  whole 

time  he  has  been  in  possession,  unless,  as  in  most 
states,  some  statute  of  limitations  limits  the  right 
of  recovery. 

147.  In  an  action  for  mesne  profits,  the  costs  of  a  previ- 

ous ejectment  suit  and,  as  sometimes  held,  reason- 
able attorney's  fees,  may  be  recovered,  in  addition  to 
the  annual  value  of  the  land. 

Whether  Damages  Recoverable  in  Ejectment. 

In  some  states,  in  an  action  of  ejectment  to  recover  the  posses- 
sion of  land  wrongfully  held  by  another,  no  damages  for  the  wrong- 
ful detention  can  be  recovered.^     If  the  plaintiff  in  ejectment  suc- 

1  Goodtitle  v.  Tombs,  3  Wils.  118;  Van  Alen  v.  Rogers,  1  Johns.  Cas.  281; 
Harvey  v.  Snow,  1  Yeates  (Pa.)  15G;  Davis  v.  Doe,  25  Miss.  445;  Emrich  v. 
Ireland,  55  Miss.  390. 


§§    145-147)       DAMAGES    FOR    DETENTION    OF    REAL    PROPERTY.  353 

ceeds,  he  recovers  the  possession,  with  mere  nominal  damages.-  To 
recover  his  substantial  damages  he  must  resort  to  a  subsequent  ac- 
tion of  trespass  for  mesne  profits.^  But  in  other  states  the  posses- 
sion and  damages  for  the  detention  are  recovered  in  one  action, — 
either  ejectment,  or  trespass  to  try  title,*  or  in  a  similar  statutory 
action. 

The  Annual  Value — How  Estimated. 

In  both  classes  of  states  the  measure  of  damages  is  the  same.  It 
is  the  annual  value  of  the  premises ;  ^  not  what  the  occupant  ac- 
tually received,  but  what  should  have  been  received.^  The  amount 
of  rent  received  by  the  defendant  from  his  lessee  does  not  establish 
the  value  of  the  premises.^  When  the  premises  are  of  such  a  char- 
acter that  they  could  yield  no  income,  and  consequently  no  profit 
has  been  received  by  the  occupant,  no  damages  are  recoverable." 

Interest. 

The  plaintiff  may  also  recover  interest  on  the  sums  the  defendant 
has  received  or  should  have  received  as  the  income  of  the  land.® 
In  a  New  York  case  it  was  held  that,  where  the  rents  had  been  paid 
quarterly,  the  interest  should  be  computed  quarterly.^"  The  Mas- 
sachusetts courts  have  held  otherwise.^  ^ 

-  Van  Alen  v.  Rogers,  1  Johns.  Cas.  281. 

3  Morgan  v.  Varick,  8  Wend.  587;  Benson  v.  Matsdorf,  2  Johns.  369;  Mit- 
chell V.  Mitchell,  1  Md.  55;  Blount  v.  Garen,  3  Hawy.  (Tenn.)  88;  Goodtitle 
V.  Tombs,  3  Wils.  118. 

*  Boyd's  Lessee  v.  Cowan,  4  Dall.  138;  Battin  v.  Bigelow,  Pet.  C.  C.  452, 
Fed.  Cas.  No.  1,108;   Miller  v.  Melchoer,  13  Ired.  439. 

&  New  Orleans  v.  Gaines,  15  Wall.  624;  Larwell  v.  Stevens,  12  Fed.  559; 
Woodhull  V.  Rosenthal,  61  N.  Y.  382;  Taylor  v.  Taylor,  43  N.  Y.  578;  Ege  v. 
Kille,  84  Pa.  St.  333;  Morrison  v.  Robinson,  31  Pa.  St.  456;  Averett  v.  Brady. 
20  Ga.  523. 

e  Woodhull  v.  Rosenthal,  01  N.  Y.  382;  Campbell  v.  Brown,  2  Woods,  349, 
Fed.  Cas.  No.  2,355;  Boiling  v.  Lei-sner,  26  Grat.  (Va.)  36.  But  see  Rabb  v. 
Patterson,  42  S.  C.  528,  20  S.  E.  540;   McMahan  v.  Bowe,  114  Mass.  140. 

T  Kille  v.  Ege,  82  Pa.  St.  102. 

8  Griffey  v.  Kennard,  24  Neb.  174,  38  N.  W.  791  (uncultivated  prairie  land). 

0  New  Orleans  v.  Gaines.  15  Wall.  624;  Sopp  v.  Winponny,  OS  Pa.  St.  78; 
Vandervoort  v.  Gould,  ."'.O  N.  Y.  639.     Contra.  Allen  v.  Smith,  63  Mo.  103. 

10  Jackson  v.  Wood,  24  Wend.  443. 

iiHodpkins  v.  I  Mice,  141  Mass.  162,  5  N.  E.  502. 

LAW  DAM. — 23 


354  WRONGS    Al'FECTING    HEAL    PROPERTY.  (Ch.    13 

Deductions  fur  Necessary  Expenses. 

The  defendant  may  deduct,  from  the  amount  received  as  the  in- 
come of  the  land,  necessary  expenses  paid  by  him,  such  as  taxes,^- 
repairs,^''  and  a  ground  rent  which  the  plaintiff  would  have  had 
to  pay.^* 

Same — Pbr  Lnprocements. 

When  .the  occupant  has  made  valuable  improvements  on  the  land, 
which  will  be  a  benefit  to  the  plaintiff,  their  value  may  be  set  off 
against  the  latter's  claim  for  damages,^*  The  improvements  must 
liave  been  made,  however,  by  one  who  acted  in  good  faith,  believing 
that  he  had  title  to  the  land,  or  no  allowance  will  be  made.^^ 

The  reasons  for  allowing  deductions  for  improvements  were  well 
stated,  in  a  Massachusetts  case,^^  substantially  as  follows:  The 
measure  of  damages  should  be,  in  an  action  of  trespass  for  mesne 
profits,  a  sum  which,  upon  just  and  equitable  principles,  will  furnish 
such  compensation  or  indemnity.  The  plaintiff  should  be  placed  in 
as  good  a  position  as  he  would  have  been  in  if  the  defendants  had 
not  dispossessed  him.  It  seems  clear  that  a  plaintiff's  claim  that 
he  is  entitled  to  the  whole  amount  of  the  rents  and  profits  from  the 
improved  estate,  without  any  deduction  for  such  improvements, 
would  be  unjust  and  unreasonable.  He  would  thus  receive  more 
than  compensation. 

12  Wallace  v.  Berdell,  101  N.  Y.  13,  3  N.  E.  769;  Ringhouse  v.  Keener,  63 
111.  230;   Semple  v.  Bank,  5  Sawy.  3M,  Fed.  Cas,  No.  12,660. 

13  Semple  v.  Bank,  5  Sawy.  394,  Fed.  Cas.  No.  12,660.  And  see  Ewalt  v. 
Gray,  6  Watts  (Pa.)  427. 

14  Doc  V.  Hare,  2  Cromp.  &  M.  145. 

16  Green  v.  Biddle,  8  Wheat.  1;  Morrison  v.  Robinson,  3r  Pa.  St.  456; 
Woodhull  v.  Rosenthal,  61  N.  Y.  396;  Bedell  v.  Shaw,  59  N.  Y  46;  Hodgkins 
V.  Price.  141  :Mass.  162,  5  N.  E.  502;  Thomas  v.  Thomas'  Ex'r,  16  B.  Mon. 
(Ky.)  420;  Stark  v.  Starr,  1  Sawy.  15,  Fed.  Cas.  No.  13,307;  Wisdom  v.  Reeves 
(Ala.)  IS  South.  13. 

17  Campbell  v.  Brown,  2  Woods,  349,  Fed.  Cas.  No.  2,355;  Dothage  v.  Stu- 
art, 35  Mo.  251;    Brown  v.  Baldwin,  121  Mo.  106,  25  S.  W.  858. 

1 8  Hodgkins  v.  Price.  141  Mass.  162,  5  N.  E.  502.  And  see  Deitzler  v.  Wil- 
hite,  55  Kan.  200.  40  Pac.  272. 


§  1^^)  DAMAGES  FOR  DETENTION  OF  DOWER.  355 

For  How  Long  Profits  Recoverable. 

The  plaintiff,  in  an  action  for  mesne  profits,  may  recover  damages 
from  the  time  his  right  to  possession  accrued  ^®  up  to  the  time  the 
defendant  gives  up  the  possession.-"  This  is  the  rule  in  the  ab- 
sence of  some  statute  of  limitations  applicable  to  such  actions.-^ 
But  in  most  states  the  right  of  recovery  is  limited  to  a  few  years 
before  the  action  is  begun,--  generally  six  years.^^ 

C^osts  of  the  Ejectment  Suit. 

"S^Tiere,  owing  to  the  technical  form  of  the  action  of  ejectment, 
no  costs  were  recovered,  they  may  be  made  a  part  of  the  damages 
in  a  subsequent  action  for  mesne  profits.-*  In  England  reasonable 
counsel  fees  in  the  ejectment  action  may  be  recovered.^®  The  same 
has  been  held  in  this  country  in  some  cases,-®  and  denied  in  others.^^ 

SAME— DAMAGES  FOR  DETENTION  OF  DOWER. 

148.  For  the  -wrongful  detention  of  her  dower  a  "w^idow^  is 
entitled  to  one-third  the  net  annual  value  of  the 
land.     This  is  computed: 

19  Danziger  v.  Boyd,  120  N.  Y.  628,  24  N.  E.  482;  Clark  v.  Boyreau.  14  Cat 
<}34;  King  v.  Little,  77  N.  C.  138;  Roberts  v.  Improvement  Co.,  126  Mo.  460, 
29  S.  W.  5&4;  Griffith  v.  Railway  Co.  (Ky.)  30  S.  W.  206. 

20  Danziger  v.  Boyd,  120  N.  Y.  628,  24  N.  E.  482;  Gilman  v.  Oilman,  111 
N.  Y.  265,  18  N.  E.  849;  McCrubb  v.  Bray,  36  Wis.  333;  Mitchell  v.  Freedley. 
10  Pa.  St.  198;  Pendergast  v.  McCaslin,  2  Ind.  87;  BeU  v.  Medford,  57 
Miss.  31. 

21  New  Orleans  v.  Gaines.  15  Wall.  624. 

2  2  Oatton  v.  Tolley,  22  Kan.  678;  Ringhouse  v.  Keener,  63  III.  230;  Her- 
reshofC  v.  Tripp,  15  R.  I.  92,  23  Atl.  104.  But  see  Budd  v.  Walker,  9  Barb.  493; 
<iaslight  Co.  V.  Rome,  W.  &  O.  R.  Co.,  51  Hun,  119,  5  N.  Y.  Supp.  459. 

23  Jackson  v.  Wood,  24  Wend.  443;   Hill  v.  Myers,  46  Pa.  St.  15. 

24  Baron  v.  Abell,  3  Johns.  481;  Doe  v.  Perkins,  8  B.  Mou.  (Ky.)  198;  Tate 
V.  Doe,  24  Miss.  465;  Aslin  v.  Parkin,  2  Burrows,  665;  Pearse  v.  Coaker,  L. 
R.  4  Exch.  92;  Doe  v.  Davis,  1  Esp.  358;  Nowel  v.  Roake,  7  Bam.  &  C.  404. 
But  see  Hunt  v.  O'Neill,  44  N.  J.  Law,  564;  Doe  v.  Filliter,  13  Mees.  &  W.  47. 

2  5  Doe  V.  Iluddart,  4  Dowl.  4.".7. 

20  Doe  V.  Perkins,  8  B.  -Mon.  (Ky.)  198;  Dan  v.  Chubb,  1  N.  J.  Law.  4(W1. 
And  see  Gibson,  C.  J.,  in  Alexander  v.  Herr,  11  Pa.  St.  .537,  5,39. 

27  HerreshoCf  v.  Tripp,  15  R.  I.  92,  23  Atl.  1(M;  White  v.  Clack,  2  Swan 
(Tenn.)  230;    Alexander  v.  Uerr,  11  I'u.  St  537. 


356  WRONGS    AFFECTING    KEAL    PROPHRTY.  (Ch.    13 

(a)  Against  an  heir  from  the  death  of  the  husband. 

(b)  Against  an  alienee,  from  the  time  of  demand. 

Damages  for  detention  of  dower  were  first  made  recoverable  by 
the  statute  of  Merton,-^  and  the  subject  is  largely  regulated  by  stat- 
ute in  the  United  States.^^  The  amouut  of  damages  is  computed 
on  the  same  basis  as  for  the  detention  of  real  property  in  other 
cases;  that  is,  the  net  value  of  the  land.  But  in  the  case  of  a  widow 
suing  for  detention  of  dower,  only  one-third  of  the  husband's  whole 
estate  is  recoverable,  that  being  the  share  of  her  husband's  land  to 
which  she  is  entitled  by  the  common  law.^°  Against  an  alienee  of 
the  husband,  damages  can  only  be  recovered  from  the  time  of  de- 
mand.^ ^  As  to  the  alienee  of  the  heir,  the  rule  is  not  uniform.^ ^ 
The  heir  can  defeat  a  claim  for  damages  by  pleading  that  he  has 
been  always  ready — "tout  temps  prist" — to  assign  dower  if  it  had 
been  demanded.^^  Except  as  changed  by  statute,  the  death  of  the 
widow  during  the  proceedings  abates  both  the  suit  and  all  claim 
for  damages.^* 

88  20  Hen.  III.  c.  1. 

29  See  1  Stim.  Am.  St.  Law,  §  3278;  2  Scrib.  Dower  (2d  Ed.)  700.  In  many 
states  the  husband  must  die  seised.  2  Scrib.  Dower  (2d  Ed.)  702.  In  some 
states  damages  can  be  recovered  for  only  a  few  years  prior  to  the  suit  1 
Stim.  Am.  St.  Law,  §  3278. 

30  Rea  V.  Rea.  G3  Mich.  257,  29  N.  "W.  703;  Henderson  v.  Chaires  (Fla.)  17 
South.  574;  StuU  v.  Graham,  GO  Arli.  401,  31  S.  W.  40;  Penrice  v.  Penrice, 
Barnes,  Notes  Cas.  234. 

31  McClanalian  v.  Porter,  10  Mo.  746;  Thrasher  v.  Tyacii,  15  Wis.  250;  Sell- 
man  V.  Bowen,  8  Gill.  &  J.  (Md.)  50;  Lay  ton  v.  Butler,  4  Har.  (Del.)  507; 
Beavers  v.  Smith,  11  Ala.  20;  Davis  v.  Logan,  9  Daua  (Ky.)  185;  Roan  v. 
Holmes,  32  Fla.  295,  13  South.  339.  That  no  damages  are  recoverable,  see 
Sharp  V.  Pettit,  3  Yeates,  38;  Gannon  v.  Widman,  3  Pa.  Dist.  R.  835;  Mar- 
shall V.  Anderson.  1  B.  Mon.  198. 

3  2  As  holding  damages  recoverable  from  husband's  death,  see  2  Scrib.  Dower 
(2d  Ed.)  715;  Seaton  v.  Jamison,  7  Watts  (Pa.)  533;  Hitchcock  v.  Harrington, 
6  Johns.  290.    From  demand,  2  Scrib.  Dower  (2d  Ed.)  714. 

3  3  Scrib.  Dower  (2d  Ed.)  707. 

34  Rowe  V.  Johnson,  19  Me.  146;  Sandback  v.  Quigley,  8  Watts,  460;  At- 
kins V.  Yeomans,  6  Mete.  (Mass.)  438;    Turney  v.  Smith,  14  111.  242;   Hildretb 


§§  149-150)     l^'JURIES  to  real  property — trespasses.  357 

INJURIES  TO  REAL  PROPERTY— TRESPASSES. 

149.  For  trespasses  to  real   property  -which  produce   only- 

temporary  injuries,  the  measure  of  damages  is  the 
loss  in  rental  value  for  the  time  the  injury  contin- 
ues. 

150.  For   permanent   injuries,  the  measure   is  the   loss  in 

market  value;  but  if  this  is  greater  than  the  cost 
of  repairing  the  injury,  then  the  cost  of  repairing 
plus  the  loss  of  the  use  of  the  land  is  the  measure 
of  damages. 

Temporary  Injuries. 

Where  the  injury  to  the  plaintiff's  land  was  one  which  has  ceased 
or  one  which  the  trespasser  has  remedied,  the  only  damages  to  which 
the  owner  is  entitled  are  such  as  result  from  the  loss  of  use  of  the 
land,  or  the  diminution  in  rental  value.^^  Thus,  in  an  action  for 
flowing  plaintiff's  land,  the  damages  would  be  the  lessened  value 
of  the  property  for  the  time  it  was  flooded.^®  And  for  a  deversion 
of  water,  the  plaintiff  could  recover  the  value  of  its  use.'^ 

Permanent  Injuries. 

By  "permanent  injuries"  is  not  meant  those  which  are  irreparable, 
but  merely  injuries  which  will  continue  unless  steps  are  taken  to 
remedy  them.  The  diminution  in  the  market  value  of  the  premises 
is  the  measure  of  damages,  when  that  is  less  than  the  cost  of  re- 
pairing.    Thus,  where  fruit  or  ornamental  trees  are  destroyed,  the 

V.  Thompson,  16  Mass.  191;  Roan  v.  Holmes,  32  Fla.  295,  13  South.  339.  But 
that  they  may  be  recovered  if  the  action  pending  is  in  equity,  see  Pollitt  v. 
Kerr,  49  N.  .7.  Eq.  Cm,  22  Atl.  800. 

35  Burditt  V.  Railroad  Co.  (Sup.)  24  N.  Y.  Supp.  1137;  Sullens  v.  Railway  Co.. 
74  Iowa,  G.j9,  38  N.  W.  545;  Simmons  v.  Brown,  5  R.  I.  299;  Ellington  v.  Ben- 
nett, 59  Ga.  286.  But  see  Negley  v.  Cowell  (Iowa)  59  N.  W.  48;  Barrltk  v. 
Schiffordecker,  123  N.  Y.  r>2,  25  N.  E.  365. 

3«  Luther  v.  Winnisimmet  Co.,  9  Cush.  171;  Sullons  v.  Railway  Co.,  74 
Iowa,  659,  38  N.  W.  545.    Cf.  Falsom  v.  Log-Driving  Co.,  41  Wis.  602. 

37  Pollott  v.  Long,  58  Barb.  20.  In  Sininious  v.  Brown,  5  R.  I.  299,  the  jury 
were  allowed  to  consider  evidence  of  protits  lost  by  defendant's  dam  <  iiusing 
water  to  set  back  on  plaintiff.s  mill. 


358  WRONGS    AFFECTING    REAL    PROPERTY.  (Ch.    13 

damages  are  measured  by  the  depreciation  in  the  value  of  the  land 
caused  thereby,  not  by  the  value  of  the  trees  when  severed.^®  It 
is  sometimes  said  that,  when  full  grown  timber  trees  are  cut  and  re- 
moved by  a  trespasser,  the  measure  of  damages  is  the  value  of  the 
trees.  The  value  of  the  trees  is  rather  evidence  of  the  amount  of 
damages  than  its  measure,  but  the  result  obtained  in  the  case  of  tim- 
ber trees  is  the  same  in  either  case,^^  though  it  would  not  be  for  fruit 
or  ornamental  trees,  or  probably  for  growing  timber  trees.**'  The 
same  principles  hold  good  when  minerals  are  ^^Tongfully  mined  on 
plaintiff's  land.  The  value  of  the  coal  or  ore  may  be  evidence  of 
the  amount  in  which  the  plaintiff  has  been  damaged,  but  the  meas- 
ure of  damages  is  the  diminished  value  of  the  realty.*^     This  is  also 

88  Carter  v.  Pitcher,  87  Hun,  580,  34  N.  Y.  Supp.  549;  Edsall  v.  Howell, 
86  Hun.  424.  33  N.  Y.  Supp.  892;  Dwight  v.  Railroad  Co.,  132  N.  Y.  199,  30 
N.  E.  398;  Nixon  v.  StillweU,  52  Hun,  353,  5  N.  Y.  Supp.  248;  Montgomery  v. 
Locke,  72  Cal.  75,  13  Pac.  401;  mtchell  v.  Billingsley,  17  Ala.  391;  Wallace 
V.  Goodall,  18  N.  H.  439;  Lowery  v.  Rowland  (Ala.)  16  South.  88.  And  see, 
as  to  other  injuries,  Fisher  v.  Naysmith  (Mich.)  64  N.  W.  19;  Chicago  &  A. 
R.  Co.  V.  Robbins,  54  111.  App.  611;  International  &  G.  N.  Ry.  Co.  v.  Davis 
(Tex.  Civ.  App.)  29  S.  W.  483;  O'Connor  v.  Shannon  (Tex.  Civ.  App.)  30  S.  W. 
1096;  Louisville.  N.  A.  &  C.  Ry.  Co.  v.  Sparks.  12  Ind.  App.  410,  40  N.  E. 
.546;  Southern  Marble  Co.  v.  Darnell,  ^  Ga.  231,  21  S.  E.  531.  But  cf.  Board 
of  Com'rs  of  Rush  Co.  v.  Trees.  12  Ind.  App.  479,  40  N.  E.  535;  Hurley  v. 
Jones,  165  Pa.  St.  34.  30  Atl.  499. 

39  E.  E.  Bolles  Wooden  Ware  Co.  v.  U.  S.,  106  U.  S.  432, 1  Sup.  Ct.  398;  Miller 
V.  Wellman,  75  Mich.  353,  42  N.  W.  843;  Winchester  v.  Craig,  33  Mich.  205; 
Michigan  Land  &  Iron  Co.  v.  Deer  Lake  Co.,  60  Mich.  143,  27  N.  W.  10; 
Cotter  v.  Plumer,  72  Wis.  476,  40  N.  W.  379;  Webster  v.  Moe,  35  Wis.  75; 
earner  v.  Railway  Co.,  43  Minn.  375,  45  N.  W.  713;  Beede  v.  Lamprey,  64 
N.  H.  510,  15  Atl.  133;  Kolb  v.  Bankhead,  18  Tex.  229;  Central  Railroad  & 
Banking  Co.  v.  Murray,  93  Ga.  256,  20  S.  E.  129.  Cf.  Single  v.  Schneider,  24 
Wis.  299;   Gaskins  v.  Davis,  115  N.  C.  85,  20  S.  E.  188. 

*o  Dwight  V.  Railroad  Co.,  132  N.  Y.  199,  .30  N.  E.  398;  Argotsinger  v.  Vines, 
82  N.  Y.  308;  Nixon  v.  StillweU,  52  Hun,  353,  5  N.  Y.  Supp.  248. 

*i  Forsyth  v.  Wells,  41  Pa.  St.  291;  Stockbridge  Iron  Co.  v.  Cone  Iron 
Works,  102  Mass.  80;  U.  S.  v.  Magoon,  3  McLean,  171,  Fed.  Cas.  No.  15,707; 
Barton  Coal  Co.  v.  Cox.  39  Md.  1;  Franklin  Coal  Co.  v.  McMillan,  49  Mo.  549. 
That  the  measure  of  damage  is  the  value  of  the  coal  or  ore  at  the  top  of  the 
shaft,  less  the  cost  of  raising  it,  see  Aurora  Hill  Consol.  Min.  Co.  v.  85  Min. 
Co.,  12  Sawy.  355,  34  Fed.  515;  Forsyth  v.  Wells,  41  Pa.  St.  291;  Cham- 
berlain v.  CoUinson,  45  Iowa,  429;    Austin  v.  Mining  Co.,  72  Mo.  535.    That 


§§    1-49-150)       INJURIES    TO    REAL   PROPERTY TRESPASSES.  359 

the  measure  which  has  been  applied  to  actions  for  injuries  result- 
ing from  the  removal  of  lateral  support,*^  for  the  destruction  of  a 
meadow, ■•^  and  for  the  unlawful  filling  up  of  a  mill  pond."*  If  the 
plaintiff  proves  no  actual  damages,  the  trespass,  nevertheless,  enti- 
tles him  to  nominal  damages.*^ 

Cost  of  Repairing. 

Where  the  injuries  to  the  realty  can  be  repaired,  and  that  with- 
out greater  expense  than  the  diminution  in  the  value  of  the  land 
if  no  repairs  were  made,  then  the  cost  of  restoring  the  realty  to 
its  condition  before  the  trespass  is  the  measure  of  damages.*' 
But  to  this  must  be  added  damages  for  the  decreased  value  of 
the  land  during  the  time  the  plaintiff  was  deprived  of  its  full  use.*^ 

it  is  the  value  after  it  is  severed,  see  Illinois  &  St.  L.  R.  &  C.  Co.  v.  Ogle, 
82  111.  627;  McLean  County  Coal  Co.  v.  Long,  81  111.  359;  Omaha  &  Grant 
Smelting  &  Refining  Co.  v.  Tabor,  13  Colo.  41,  21  Pac.  925;  Sunny  side  Coal 
&  Coke  Co.  V.  Reitz  (Ind.  App.)  39  N.  E.  541.  But  see  Martin  v.  Porter,  5 
Mees.  &  W.  351. 

42  Gilmore  v.  Driscoll,  122  Mass.  199;  Kopp  v.  Railroad  Co.,  41  Minn.  310, 
43^  N.  W.  73;  Moellering  v.  Evans,  121  Ind.  195,  22  N.  B.  989;  McGuire  v. 
Grant,  25  N.  J.  Law,  356.    But  see  Thurston  v.  Hancock,  12  Mass.  220. 

43  Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Hogsett,  67  Tex.  685,  4  S.  W.  365;  Ft.  Worth 
&  N.  O.  Ry.  Co.  V.  Wallace,  74  Tex.  581,  12  S.  W.  227.  But  see  Vermilya  v. 
Railway  Co.,  66  Iowa,  606,  24  N.  W.  234.  For  various  rules  as  to  the  measure 
of  damages  for  the  destruction  of  crops,  see  King  v.  Fowler,  14  Pick.  238;  Rich- 
ardson V.  Northrup,  66  Barb.  85;  Folsom  v.  Driving  Co.,  41  Wis.  602;  Drake 
V.  Railway  Co.,  63  Iowa,  303;  19  N.  W.  215;  Byrne  v.  Railway  Co.,  38  Minn. 
212,  36  N.  W.  339;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McGowan,  73  Tex.  Aoo,  11  S. 
W.  336;  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Parr  (Tex.  Civ.  App.)  28  S.  W.  264; 
Colorado  Consolidated  Land  &  Water  Co.  v.  Hartman,  5  Colo.  App.  150,  38 
Pac.  62;  Chicago  &  E,  R.  Co.  v.  Barnes,  10  Ind.  App.  460,  38  N.  E.  428;  Hoi)- 
kins  V.  Commercial  Co.  (Mont.)  40  Pac.  865. 

**  Finley  v.  Hershey,  41  Iowa,  389. 

•«5  Jones  V.  Hannovan,  55  Mo.  462;  Munroe  v.  Stickney,  48  Me.  462;  Tootle 
V.  Clifton,  22  Ohio  St.  247. 

4«  Graessle  v.  Carpenter,  70  Iowa,  166,  30  N.  W.  392;  Harrison  v.  Klser, 
79  Ga.  588;  Seely  v.  Alden,  61  Pa.  St.  302;  Ziebarth  v.  Nye,  42  Minn.  541." 
44  N.  W.  1027;  Koch  v.  Investment  Co.,  9  Wash.  405,  37  Pac.  703.  But  see 
Burtraw  v.  Clark,  103  Mich.  383,  61  N.  W.  552;  Nelson  v.  Village  of  West 
Duluth,  55  Minn.  497,  57  N.  W.  149. 

*^  Cavanagh  v.  Durgin,  156  Mass.  466,  31  N.  E.  643;  Walters  v.  Chamber- 
lin,  OTj  Mich.  333,  32  N.  W.  440;  Graessle  v.  Carpenter,  70  Iowa,  166,  30  N. 
W.  ;J92. 


300  WRONGS    AFFECTING    KKAL    PROPERTY.  (Cll.   l3 

By  the  rule  of  avoidable  consequences  *^  the  plaintiff  can  recover 
such  damages  for  only  what  would  be  a  reasonable  time  in  which 
to  repair.** 

Consequential  Damacjes. 

Consequential  damages  may  also  be  recovered,  in  addition  to  the 
damages  already  mentioned,  when  a  proper  case  is  presented.  Thus 
a  trespasser  who  pulled  down  a  fence  has  been  held  liable  for  the 
value  of  cattle  lost  in  consequence  of  the  trespass,^"  in  addition  to 
the  value  of  the  fence.  Damages  for  injured  feelings  have  been 
recovered  in  an  action  in  the  nature  of  trespass  q.  c.  f.  for  the  re- 
moval of  a  body  from  a  cemetery  lot."*^  A  defendant  who  under- 
mines a  store  may  become  liable  for  a  loss  of  profits  caused  there- 
by.°^  And  one  who  destroys  a  dam  may  be  liable  for  the  loss  of 
profits  of  a  mill  run  by  water  supplied  from  the  dam.'^* 

Exemplary  Damages  and  Penaltm. 

Exemplary  damages  may  also  be  recovered  in  an  action  for  inju- 
ries to  real  estate  when  the  trespass  causing  the  damage  was  wan- 
ton or  malicious.^*  In  some  states  it  has  been  provided  by  statute 
that  treble  damages  shall  be  recoverable  for  malicious  or  willful 
trespasses.^' 

<8  See  ante,  p.  64. 

49  Ludlow  V.  Village  of  Yonkers.  43  Barb.  493;  Whipple  v.  Weanskuck  Co., 
12  R.  I.  311. 
BO  Damron  v.  Roach,  4  Humph.  134. 

61  Meagher  v.  Driscoll,  99  Mass.  281. 

62  Shafer  v,  Wilson,  44  Md.  268. 

63  White  V.  Moseley,  8  Pick.  356. 

64  Cutler  V,  Smith,  57  111.  252;  Smalley  v.  Smalley,  81  111.  70;  Koenigs  v. 
Jung,  73  Wis.  178,  40  N.  W.  801;  Reynolds  v.  Braithwaite,  131  Pa.  St.  416. 
18  Atl.  1110;  Brown  v.  Allen,  35  Iowa,  306;  Craig  v.  Cook,  28  Minn.  232,  9 
N.  W.  712;  Trauerman  v.  Lippincott,  39  Mo.  App.  478;  U.  S.  v.  Taylor,  35 
Fed.  484.  But  see  McCorraack  v.  Showalter,  11  lud.  App.  98,  38  N.  E.  875; 
Fishbume  v.  Engledove  (Va.)  22  S.  E.  354. 

5  5  Reed  V.  Davis,  8  Pick.  514;  Michigan  Land  &  Iron  Co.  v.  Deer  Lake  Co., 
60  Mich.  143,  27  N.  W.  10;    Barnes  v.  Jones,  51  Cal.  303. 


§§    151-152)        INJURIES    TO    REAL    PROPERTY NUISANCE.  361 


SAME— NUISANCE. 

151.  For  nuisances  -which  are  permanent,  the  measure   of 

damages  is  the  loss  in  the  market  value  of  the 
premises. 

152.  For  nuisances  -which  are  not  permanent,  the  ordinary- 

measure  of  damages  is  the  loss  in  rental  value  plus 
the  expenses  incurred  in  abating  the  nuisance  and 
restoring  the  premises  to  their  former  condition. 

When  the  nuisance  of  which  the  plaintiff  complains  is  one  which 
be  cannot  abate,  and  of  which  the  law  presumes  the  continuance,^' 
the  damage  is  estimated  at  the  permanent  depreciation  in  the  mar- 
ket value  of  the  premises.®^  Where  the  nuisance  is  of  a  temporary 
nature,  the  wrongful  continuance  of  which  will  not  be  presumed, 
the  measure  of  damages  is  the  actual  loss  which  the  plaintiff  has 
sustained  up  to  the  time  of  bringing  the  action.^^  This  is  measured, 
in  general,  by  the  loss  in  the  rental  value  of  the  premises;  that  is, 
the  value  of  the  use  of  the  land.*^^  To  this  may  be  added  the  ex- 
pense of  restoring  the  injured  premises  to  the  condition  in  which 

5  8  As  when  the  conduct  is  authorized  on  condition  that  compensation  be 
made  for  damages.  See  ante,  p.  S3.  As  to  special  damages,  see  Rose  v. 
Miles,  4  Maule  &  S.  101;   Booth  v.  Ratte,  15  App.  Cas.  188. 

5-  Illinois  Cent.  R.  Co.  v.  Grabill,  50  111.  241;  Vandorslice  v.  City  of  Phila- 
delphia, 103  Pa.  St.  102;  Fowle  v.  Northampton  Co.,  112  Mass.  SM;  Finley  v. 
Hershey,  41  Iowa,  389;  O'Connor  v.  Railroad  Co.,  56  Iowa,  735,  10  N.  W.  2G3; 
•Givens  v.  Van  Studdiford,  86  Mo.  149;  Consolidated  Home  Supply  Ditch  & 
Reservoir  Co.  v.  Hamlin  (Colo.  App.)  40  Pac.  582.  "Where  the  nuisance  can 
be  abated,  it  has  been  held  that  there  can  be  no  recoveiy  for  permanent  in- 
juries. Cumberland  &  Oxford  Canal  Corp.  v.  Hitchings,  Go  Me.  140;  Ilattield 
T.  Railroad  Co.,  33  N.  J.  Law,  251;  Hopkins  v.  Railroad  Co.,  50  Cal.  190;  Bat- 
tishill  V.  Reed,  18  C.  B.  696.    And  see  Foote  v.  "^'ater  Co.  (Iowa)  62  N.  W.  048. 

■'S  See  ante,  p.  82;  Bielman  v.  Railway  Co.,  50  Mo.  App.  151;  Cumberland 
&  O.  Canal  Corp.  v.  Hitchings,  65  Me.  140;  Hale  v.  Cli.Trd  Union  [1891]  1  Ch. 
29:3. 

58  City  of  Chicago  v.  Huenerbein,  85  111.  .594;  Francis  v.  Schoellliopf,  53  N. 
Y.  152;  Herbert  v.  Rainey  (Pa.  Sup.)  29  .Ml.  725;  Loughran  v.  City  of  Des 
Moines,  72  Iowa,  382,  34  N.  W.  172;  Culf,  C.  cV:  S.  F.  Ry.  Co.  v.  IIcKsley,  62 
Tex.  593. 


3G2  WRONGS    AFFECTING    REAL    PROPERTY.  (Ch.    15 

they  were  before  the  nuisauce  began.®"  If  the  plaintiff  has  abated 
the  nuisance,  expenses  so  incurred  may  be  recovered.'^  Other  in- 
juries, indirect,  but  not  too  remote,  may  be  compensated  in  an  action, 
for  a  nuisance.  Thus,  the  profits  of  an  established  business  may 
be  recovered;®^  damages  by  sickness  including  medical  expenses*^ 
and  loss  of  time;  ®*  and  for  inconvenience  caused  by  the  nuisance.** 

M%en  Nominal  Damages  Recoverable. 

Annoyance,  to  constitute  a  nuisance,  must  cause  substantial  dam- 
age; for  damages  are  the  gist  of  the  wrong,  unless  there  is  a  physic- 
al invasion  of  or  interference  with  another's  property,  in  which  case 
the  presence  or  absence  of  actual  damage  is  immaterial. 

The  creating  or  continuing  of  a  nuisance  in  any  form,  which  in- 
volves the  physical  invasion  of  or  interference  with  another's  prop- 
erty, is  a  wrong  for  which  at  least  nominal  damages  may  be  recov- 
ered." Neither  absence  of  actual  damages,  nor  even  benefit  from 
the  nuisance,^^  nor  abatement,  will  prevent  such  recovery.®^  Thus 
the  overhanging  of  another's  land  is  a  nuisance,  for  which  an  actioD 
will  lie  without  allegation  or  .proof  of  actual  damages.®''  So,  to 
cause  water  to  flow  wrongfully  upon  another's  land  in  such  a  way 

60  Jutte  v.  Hughes,  67  N.  Y.  267;    Emery  v.  Lowell.  109  Mass.  197. 

61  Jutte  V.  Hughes,  67  N.  Y.  267;    Shaw  v.  Cummiskey,  7  Pick.  76. 

62  St.  John  V.  Mayor,  etc.,  13  How.  Prac.  527;  Park  v.  Railway  Co.,  43^ 
Iowa,  636. 

63  Pierce  v.  Wagner,  29  Minn.  335,  13  N.  W.  170;  Loughran  v.  City  of  Des 
Moines,  72  Iowa,  382,  34  N.  W.  172;  Gulf,  C.  &  S.  P.  R.  Co.  v.  Richards  (Tex. 
Civ.  App.)  32  S.  W.  96. 

6  4  Loughran  v.  City  of  Des  Moines,  72  Iowa,  382,  34  N.  W.  172;  Lockett  v. 
Railway  Co.,  78  Tex.  211,  14  S.  W.  5r>4. 

6  5  Baltimore  &  P.  R.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  2  Sup.  Ct. 
719;  Churchill  v.  Water  Co.  (Iowa)  62  N.  W.  646;  Randolf  v.  Town  of 
Bloomfield,  77  Iowa,  50,  41  N.  W.  562;  Berger  v.  Gaslight  Co.  (Minn.)  62  N. 
W.  336;  Columbus,  H.  V.  &  T.  R.  Co.  v.  Gardner,  45  Ohio  St.  309,  13  N.  E. 
69;  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  2  Sup.  Ct. 
719.    But  cf.  Brown  v.  Watson,  47  Me.  161. 

«6  Alexander  v.  Kerr,  2  Rawle  (Pa.)  83;    Munroe  v.  Stickney,  48  Me.  462. 

•  7  Francis  v.  Schoellkopf,  53  N.  Y.  152;  Wesson  v.  Iron  Co.,  13  Allen  (Mass.) 
95;  Kimel  v.  Kunel,  4  Jones  (N.  C.)  121;  Marcy  v.  Fries,  18  Kan.  353. 

6  8  Call  V.  Buttrlck,  4  Cush.  345;    Gleason  v.  Gai-y,  4  Conn.  418. 

60  Bellows  V.  Sackett,  15  Barb.  96;  Codman  v.  Evans,  7  Allen,  431;  Tucker 
V.  Newman,  11  Adol.  &  E.  40. 


§§    10O-154)  INJURIES    TO    REAL    PROPKRTY WASTE.  363- 

that  its  continuance  would  create  an  easement  is  sufiQcient  to  jus- 
tify an  injunction,  irrespective  of  damages.'^" 

But  when  the  act  complained  of  is  lawful  in  itself,  and  actionable 
only  because  of  harmful  consequences,  a  different  rule  prevails. 
Then  it  is  only  when  some  actual  damage  is  done  that  a  right  of 
action  ensues.  The  damage  must  be  substantial.  "Everything 
must  be  looked  at  from  a  reasonable  point  of  view.  The  law  does 
not  regard  a  trifling  inconvenience,  but  only  large,  sensible  incon- 
veniences and  injuries,  which  sensibly  diminish  the  comfort,  enjoy- 
ment, or  value  of  the  property  which  they  affect."  ^^ 

SAME— WASTE. 

153.  The  measure  of  damages  for  -waste  is  the  duninutioiL 

in  the  market  value  of  the  inheritance. 

154.  In  many  states   double  or  treble   damages  for  ■waste 

are  imposed  by  statute. 

The  measure  of  damages  for  waste  committed  by  the  owner  of  a 
particular  estate  is  the  diminution  in  the  value  of  the  estate  in  re- 
version or  remainder,'^ ^  Where  waste  has  been  committed  by  re- 
moving fixtures,  or  cutting  trees,  the  recovery  is  not  limited  to  the 
value  of  fixtures,  or  of  the  trees  after  severance.'^* 

By  the  statute  of  Gloucester  ''*  a  penalty  of  treble  damages  was 
imposed  in  certain  cases  of  waste.  This  statute  is  in  force  in  some 
states.''^  In  others  there  are  similar  statutes,  giving  double  or 
treble  damages,  and  usually  imposing  an  additional  penalty  of  for- 
feiture of  the  place  wasted.^® 

-0  Learned  v.  Castle,  78  Cal.  454,  18  Pac.  872,  21  Pac.  11,  and  eases  cited. 

712  Jag.  Torts,  778;  Pickard  v.  Collins,  23  Barb.  (N.  Y.)  444;  Rhodes  v. 
Dunbar,  57  Pa.  St.  274;  Barnes  v.  Hathorn,  54  Me.  124;  St.  Helen's  Smelt- 
ing Co.  V.  Tipping,  11  H.  L.  Cas.  642. 

"2  Van  Deusen  v.  Young,  29  N.  Y.  9;  Harder  v.  Harder,  2(j  Barb.  409;. 
White  v.  Stoner,  18  Mo.  App.  540.  For  waste  by  a  vendor,  see  Worrall  v. 
Munn,  53  N.  Y.  185. 

73  White  v.  Stoner,  18  Mo.  App.  540;    HosUing  v.  Phillips,  3  Exch.  IGG. 

74  G  Edw.  I.  c.  5. 

70  Sackett  v.  Sackett,  8  Pick.  309.    See  3  Bin.  (Pa.)  Append.  G02. 
7  6  Xew   York,  4   Rev.   St.   1SS3,   §  IO-jU;    Mi<-liigan,    llow.   Ann.   St    ISS.'^,   I 
I'Mo;    Wisconsin,  Sanb.  &,  B.  Ann.   St.   1889,  §  31T<;;    Iowa,    .M(<  llaitrs  Arm. 


3G4:  WRONGS    AFFECTING    REAL   PROPERTY.  (Cll.    13 


CONTRACTS  TO  SELL  REAL  PROPERTY  —  ERE ACH   BY 

VENDOR. 

155.  The  proper  measure  of  damages  for  the  breach  by  a 
vendor  of  his  contract  to  sell  real  property  is  the 
difference  between  the  contract  price  and  the  mar- 
ket value  of  the  land  at  the  time  of  the  breach,  plus 
any  part  of  the  purchase  price  -w^hich  has  been  paid, 
w^ith  interest. 
EXCEPTION — In  some  states  the  vendee  can  recover, 
in  addition  to  purchase  money  advanced,  vrith  in- 
terest, only  nominal  damages  for  a  breach  of  the 
contract  due  to  failure  of  the  vendor's  title,  provided 
the  vendor  acted  in  good  faith.  In  Pennsylvania, 
the  good  faith  of  the  vendor  is  immaterial. 

The  Better  Rule. 

In  most  Ameiican  states  a  vendee  can  recover  substantial  dam- 
ages for  his  vendor's  breach  of  contract  to  convey  real  property;  ^^ 
that  is,  the  vendee  is  given  the  benefit  of  his  bargain.  This  is  of 
particular  importance  when  the  property  has  risen  in  value  after 
the  contract  of  sale  was  entered  into.^®  The  value  of  the  land  in 
estimating  the  damages  is  taken  at  the  time  it  should  have  been 
conveyed  under  the  contract.^" 

Code  188S,  §§  4568,  4569;  Minn.  St.  1894,  §§  5882,  5883;  Missouri,  2  Rev.  St 
1889,  §  &401;  Massachusetts,  Pub.  St  1882,  p.  1038;  Indiana,  Rev.  St  1894. 
§  287  (Rev.  St  1881,  §  286);   Kentucky,  Gen.  St  1894,  §  2328. 

7  7  Hopkins  v.  Lee,  6  Wheat  109;  Plummer  v.  Rigdon,  78  HI.  222;  Loomis 
V.  Wadhams,  8  Gray,  557;  Brigham  v.  Evans,  113  Mass.  538;  Muenchow  v. 
Roberts,  77  Wis.  520,  46  N.  W,  802;  Skaaraas  v.  Finnegan,  31  Minn.  48, 
16  N.  W.  456;  Shaw  v.  Wilkins'  Adm'r,  8  Humph.  (Tenu.)  647;  Case  v.  Wol- 
cott  33  Ind.  5;  Duncan  v.  Tanner,  2  J.  J.  Marsh.  (Ky.)  399;  Robinson  v. 
Heard,  15  Me.  296;  Whiteside  v.  Jennings,  19  Ala.  784;  Wells  v.  Abernethy, 
5  Conn.  222;  Kempner  v.  Cohn,  47  Ark.  519,  1  S.  W.  869;  Irwin  v.  Askew, 
74  Ga.  581;  Nichols  v.  Freeman,  11  Ired.  99;  Barbour  v.  Nichols,  3  R.  L 
187;  Cade  v.  Brown,  1  Wash.  401,  25  Pac.  457;  Dunshee  v.  Geoghegan,  7 
Utah,  113,  25  Pac.  731;    Russ  v.  Telfener,  57  Fed.  973. 

7  8  Hopkins  v.  Lee,  6  Wheat  109. 

7  9AUen  V.  Atkinson,  21  Mich.  351;    Combs  v.  Scott  76  Wis.  6(52,  45  N.  W. 


§    155)  CONTRACT    OF    SALE BREACH    BY    VENDOR,  365- 

Nominal  Damages  Only — The  English  Rule. 

In  England  an  anomalous  rule  of  damages  has  been  adopted  in- 
actions against  vendors  for  breach  of  contracts  to  sell  real  property. 
The  leading  cases  establishing  the  rule  in  that  country  are  Flureau 
V.  Thomhill  ®°  and  Bain  v.  Fothergill."  The  uncertainty  of  English 
titles  is  assigned  as  the  reason  for  the  rule,  but  such  considerations 
have  no  place  under  our  registry  laws.  The  English  rule  has  been 
followed,  however,  in  some  states.  In  Pennsylvania  this  is  carried 
so  far  that  only  nominal  damages  are  recoverable  even  in  cases 
where  the  vendor  knew  that  his  title  was  not  good.^^  But  in  the 
other  states  which  follow  the  English  rule  it  is  necessary  that  the 
vendor  act  in  good  faith  or  he  is  held  liable  for  substantial  dam- 
ages.^ ^     So,  where  the  title  was  in  a  third  person,  a  vendor  has  been 

532;  Plummer  v.  Rigdon,  78  111.  222;  Whiteside  v.  Jennings,  19  Ala.  784. 
That  the  necessary  expense  incurred  by  the  plaintiff  in  searching  the  title 
may  be  recovered,  see  Cal.  Civ.  Code,  §  3306.  And  cf.  Sanderlin  v.  Willis,. 
94  Ga.  171,  21  S.  E.  291.  For  cases  of  failure  of  the  title  to  part  of  the  land, 
see  Hiner  v.  Richter,  51  HI.  299;  Moses  v.  Wallace,  7  Lea,  413;  Walker  v. 
France,  112  Pa.  St.  203,  5  Atl.  208.  For  breach  of  a  contract  to  give  a  lease, 
the  measure  of  damages  is  the  value  of  the  lease;  that  is,  the  difference 
between  the  value  of  the  premises  for  the  term  and  the  rent  which  was  to 
be  paid.  Loyd  v.  Capps  (Tex.  Civ.  App.)  29  S.  W.  595;  Paposkey  v.  Munk- 
witz,  68  Wis.  322,  32  N.  W.  35;  Trull  v.  Granger,  8  N.  Y.  115;  Knowles  v. 
Steele,  59  Minn.  452,  61  N.  W.  557.  Expenses  necessarily  caused  by  the 
lessor's  breach  may  be  added.  Yeager  v.  Weaver,  64  Pa.  St  425.  But  see, 
for  expenses  not  recoverable,  Eddy  v.  Coffin,  149  Mass.  463,  21  N.  E.  870-,^ 
Cohn  V.  Norton,  57  Conn.  480,  18  Atl.  595. 
»o  2  W.  Bl.  1078. 

81  Ij.  R.  7  H.  L.  158.  It  was  said  by  Parke,  B.,  in  Robinson  v.  Harman, 
1  Exch.  850,  that  "contracts  for  the  sale  of  real  estate  are  merely  on  condi- 
tion that  the  vendor  has  a  good  title,  so  that,  when  a  person  contracts  to 
sell  real  property,  there  is  an  imi)lied  undertaking  that,  if  he  fail  to  make 
a  good  title,  the  only  damages  recoverable  are  the  expenses  -which  the  ven- 
dee may  be  put  to  in  investigating  the  title." 

82  Burk  V.  Sorrill,  80  Pa.  St.  413;  McCafferty  v.  Griswold,  99  Pa.  St.  276; 
McXair  v.  Compton,  35  Pa.  St.  2.'},  But  see  Hennershotz  v.  Gallaglicr  (I'a. 
Sup.)  16  Atl.  518. 

83  Pumpelly  v.  Phelps,  40  N.  Y.  59;  Conger  v.  Weaver,  20  N.  Y.  140;  Mar- 
graf  V.  Muir,  .57  N.  Y.  155;  Walton  v.  Meeks,  120  N.  Y.  79,  2:\  N.  E.  1115; 
Rinoer  v.  Collins,  156  Pa.  St.  342,  27  Atl.  28;  Donnor  v.  Rcdonbaugh.  61  Iowa, 
2(;9,  16  N.  W.  127;    Yokom  v.  McP.ridc,  56  Iowa,  139,  8  N.  W.  79.'.;    Dunniea 


366  WRONGS    AFFECTING    REAL    PROPERTY.  (Ch.    13 

held  liable  beyond  nominal  damages,  even  though  the  vendor  rea- 
sonably believed  that  he  could  procure  a  conveyance  of  the  title 
of  the  owner.** 

Fraudulent  RepresenVi lions  by  Vendor. 

Where  a  vendor  makes  fraudulent  statements,  in  order  to  induce 
s.  vendee  to  purchase  land,  as  to  the  quantity,  boundaries,  or  con- 
dition and  improvements  of  the  land  contracted  to  be  sold,  the  meas- 
ure of  damages  is  the  difference  between  the  value  of  the  land  as  it 
is  and  its  value  if  it  had  been  as  represented.*'^ 

SAME— BREACH  BY  VENDEE. 

156.  The  measure  of  damages  for  the  breach  by  a  vendee 
of  his  contract  to  purchase  real  property  is  the  dif- 
ference bet-ween  the  contract  price  and  the  value 
of  the  land. 

When  a  purchaser  of  real  property  fails  to  carry  out  his  contract, 
the  vendor  can  recover  such  an  amount  as  damages  as  will  make 
him  whole.  If  the  land  was  worth  less  than  he  sold  it  for,  or  if  it 
depreciated  in  value  between  the  time  the  contract  was  made  and 
its  breach  by  the  vendee,  the  vendor  can  recover  the  difference  in 
value  of  the  land  and  what  the  vendee  agreed  to  pay  for  it.*®  In 
some  cases  the  vendor  has  been  permitted  to  recover  the  contract 
price,*'  but  this  gives  him  more  than  compensation,  since  he  still 

V.  Sharp,  7  Mo.  71;  Hemdon  v.  Venable,  7  Dana  (Ky.)  371;  Baltimore  Per- 
manent Bldg.  &  Land  Soc.  v.  Smith,  54  Md.  187;  Sanford  v.  Cloud,  17  Fla. 
532;    Tracy  v.  Gunn,  29  Kan.  508. 

«<  Pnmpelly  v.  Phelps,  40  N.  Y.  59;  Heimburg  v.  Ismay,  35  N.  Y.  Super. 
€t.  35. 

«6  Drew  V.  Beall,  62  IlL  164;  Krumm  v.  Beach,  96  N.  Y.  398;  Page  v. 
Wells,  37  Mich.  415;  Gates  v.  Reynolds,  13  Iowa,  1;  Hahn  v.  Cummings,  3 
Iowa,  583. 

«6  Allen  V.  Mohn,  86  Mich.  328,  49  N.  W.  52;  Old  Colony  R.  Co.  v.  Evans, 
6  Gray,  25;  Ellet  v.  Paxson,  2  Watts  &  S.  (Pa.)  418;  Griswold  v.  Sabin,  51 
N.  H.  167;  Porter  v.  Travis,  40  Ind.  556;  Anderson  v.  Truitt,  53  Mo.  App. 
590;  Hogan  v.  Kyle,  7  Wash.  595,  35  Pac.  399.  But  see  McGuinness  v. 
Whalen,  16  R.  I.  558,  18  Atl.  158. 

8-  Richards  v.  Edick,  17  Barb.  260;  Goodpaster  v.  Porter,  11  Iowa,  161; 
Inhabitants  of  Alna  v.  Plummer,  4  Me.  258. 


§    157)       BREACH    OF    COVKNANTS SEISIN    AND    RIGHT    TO    CONVEY.  367 

has  the  land.  WTiere  the  vendee  has  been  in  possession,  interest 
on  the  whole  amount  of  purchase  money  unpaid  has  been  allowed 
as  additional  damasres.*" 


BREACH  OF  CO-TENANTS— SEISIN  AND  RIGHT  TO  CONVEY. 

157.  The  measure  of  damages  for  breach  of  a  covenant  of 
seisin  or  right  to  convey  is  the  purchase  price  paid, 
■with  interest,  and  costs  of  the  ejectment  suit. 

For  the  breach  of  covenants  of  title,  the  rules  of  damages  are 
anomalous.  The  can  be  explained  only  through  the  feudal  origin 
of  the  covenants  themselves.  The  rules  as  they  are  in  force  in  most 
of  the  states  operate  to  restore  the  parties  to  the  position  they  were 
in  before  any  contract  was  made,  and  not  to  give  such  damages  as 
would  place  the  covenantee  in  as  good  a  position  as  though  the 
contract  made  by  the  covenantor  had  been  performed. 

The  covenants  of  seisin  and  of  right  to  convey  are  the  same,  so 
far,  at  least,  as  the  measure  of  damages  for  their  breach  is  con- 
cerned. The  covenantee  does  not  get  the  benefit  of  his-  bargain,  as 
he  should,  but  only  recovers  what  he  has  paid  for  the  land.*®  If 
the  eviction  is  only  partial,  a  proportionate  amount  of  the  consid- 
eration paid  is  recovered.^"  If  there  has  been  no  eviction,  only  nom- 
inal damages  can  be  recovered.®^  Interest  on  the  purchase  price, 
or  any  part  of  it,  which  has  been  paid,  may  be  recovered  as  a  part 
of  the  damages.®^     When  the  covenantee  has  defended  an  ejectment 

«8  Stevenson  v.  Maxwell,  2  N.  Y.  408;    Fludyer  v.  Cocker,  12  Ves.  25. 

«9  Weber  v.  Anderson,  73  111.  439:  Bingbam  v.  Weiderwax,  1  N.  Y.  509; 
Pitcber  v.  Livingston,  4  Johns.  1;  Nicliols  v.  Walter,  8  Mass.  243;  Hodges 
V.  Tbayer,  110  Mass.  28G;  Mclnnis  v.  Lyman,  62  Wis.  191,  22  N.  W.  405; 
Kimball  v.  Biyant,  25  Minn.  4'.m;  Montgomery  v.  Reed,  G9  Me.  510;  Martin 
V.  Long,  3  Mo.  391.  But  see  Smitb  v.  Strong,  14  Ficlc.  128,  a  case  wIkto  tbe 
consideration  paid  could  not  be  proved. 

90  Tone  v.  Wilson,  81  111.  529;  Gutlirie  v.  Pugsley,  12  Jobus.  12(5;  Morris 
v.  Pbelps,  5  Jobns.  40;  Cornell  v.  .latkson,  3  Cusb.  (Mass.)  50G;  Mcliiuis  v. 
Lyman,  02  Wis.  191,  22  N.  W.  40.1;  Bibb  v.  Freeman,  59  Ala.  012.  Cf.  Hart- 
ford &  Salisbury  Ore  Co.  v.  Miller,  41  Conn.  112. 

»i  Smith  V.  Hughes,  50  Wis.  620,  7  N.  W.  6.5:5;  ("ockrcll  v.  rrodor,  65  Mo. 
41;    Norman  v.  Winch,  65  Iowa,  2G:{,  21  N.  W.  59S. 

02  liicklurd  v.  Page,  2  .Mass.  4."j5;    Siimricr  v.  Williams,  S  Ma.s.s.  162;    Smitb 


oG8  WRONGS    AFFKCTING    REAL    PROPERTY.  (Cll.    13 

suit  bi'ouglit  by  the  rightful  owner,  and  has  been  defeated,  he  may 
recover  from  the  covenantor  the  costs  of  the  suit.''^  In  most  states 
this  includes  counsel  fees,"*  but  not  in  all.°^ 

SAME— WARRANTY  AND  QUIET  ENJOYMENT. 

158.  The  measure  of  damages  for  breach  of  a  covenant  of 
-warranty  or  quiet  enjoyment  is  in  most  states  the 
purchase  price  paid,  with  interest,  for  the  time  the 
covenantee  is  liable  for  mesne  profits,  plus  the  costs 
of  any  suit  brought  to  try  the  title. 
EXCEPTION — In  a  few  states  the  measure  of  damages 
for  breach  of  these  covenants  is  the  value  of  the 
land  at  the  time  of  eviction. 

The  Consideration  as  the  Measure. 

In  nearly  all  the  states  the  damages  which  are  given  on  covenants 
of  warranty  and  quiet  enjoyment  are  based  on  the  old  feudal  doc- 
trine of  warranty,  and  the  value  of  the  land  at  the  time  of  the  cove- 
nant is  made  the  measure.  But  the  value  of  the  land  is  taken  at 
the  price  which  was  paid  for  it.  Though  this  may  be  contrary  to  all 
the  fundamental  principles  of  damages,  it  is  certainly  the  rule  in  the 
great  majority  of  states.®^  Under  this  rule  a  covenantee,  who  is 
evicted  by  one  having  a  superior  title,  cannot  recover  from  his  war- 
rantor for  improvements  which  he  has  erected  on  the  land;  ®^  though, 

V.  Strong,  14  Pick.  128;  Martin  v.  Long,  3  Mo.  301;  Lawless  v.  Collier's 
Ex'rs,  19  Mo.  480;    Brandt  v.  Foster,  5  Iowa,  289. 

S3  Sumner  v.  Williams,  8  Mass.  1G2;  Rickert  v.  Snyder,  9  Wend.  416; 
Staats  V.  Ten  Eyck,  3  Caines,  Cas.  111. 

9*  Staats  V.  Ten  Eyck,  3  Caines,  Cas.  Ill;  Rickert  v.  Snyder,  9  Wend.  41G; 
Ryerson  v.  Chapman,  G6  Me.  557. 

95  Williams  v.  Bnrg,  9  Lea,  455;  Jeter  v.  Glenn,  9  Rich.  Law,  374;  Tunier 
V.  Miller,  42  Tex.  418. 

9  6  Staats  v.  Ten  Eyck,  3  Caines,  Cas.  Ill;  Harding  v.  Larkin,  41  111.  413; 
Devine  v.  Lewis,  38  Minn.  24,  35  N.  W.  711;  Brandt  v.  Foster,  5  Iowa,  287; 
Lambert  v.  Estes,  99  Mo.  604,  13  S.  W.  284;  Alvord  v.  Waggoner  (Tex.  Civ. 
App.)  29  S.  W.  797;  Rash  v.  Jenne,  26  Or.  169,  37  Pac.  538.  But  see  Brooks 
V.  Black,  68  Miss.  161,  8  South.  332;    Taylor  v.  Wallace  (Colo.)  37  Pac.  963. 

97  Pitcher  v.  Livingston,  4  Johns.  1;  Hunt  v.  Raplee,  44  Hun,  149.  But 
see  Ela  v.  Card,  2  N.  H.  175. 


§    159)  BREACH    OF    COVENANTS AGAINST    INCUMBRANCES.  869 

as  has  been  seen,  the  value  of  snch  improvements  is  deducted  from 
the  mesne  profits,  which  are  recovered  by  the  real  owner.®*  When- 
ever the  covenantee  is  liable  for  mesne  profits,  he  can  recover  in- 
terest on  the  consideration  paid  for  the  same  length  of  time  that  he 
^s  so  liable  for  the  mesne  profits.'*®  There  may  be  a  recovery,  also, 
as  part  of  the  damages,  of  the  costs  of  any  suits  brought  or  defended 
in  settling  the  title  to  the  land,^*'°  provided  the  costs  were  incurred 
in  good  faith.^°^     Costs  may  include  attorney's  fees.^"* 

The  Value  at  Eiiiiion  as  the  Measure. 

In  Massachusetts  and  a  few  other  states  the  measure  of  damages 
awarded  on  the  breach  of  covenants  of  warranty  and  quiet  enjoy- 
ment is  the  value  of  the  land  at  the  time  of  the  eviction.^"*  This, 
of  course,  includes  improvements.^^* 

SAME— AGAINST  INCUMBRANCES. 

159.  The  measure  of  damages  for  breach  of  a  covenant 
ag^ainst  incumbrances  is: 
(a)  For  a  permanent  incumbrance,  the  diminution  in  the 
value  of  the  premises  due  to  the  incumbrance, — not 
exceeding,  in  most  states,  the  consideration  paid; 
in  others,  not  exceeding  the  value  of  the  land  (p. 
270). 

•  8  Ante,  p.  354. 

•  9  Cox  V.  Homy,  32  Pa.  St.  IS;    Hutcliins  v.  Roundtree,  77  Mo.  500. 

100  Bennet  v.  Jenkins.  13  Johns.  50;    Swartz  v.  Ballon,  47  Iowa,  188. 

101  Ryerson  v.  Chapman,  GO  Me.  557. 

102  Harding  v.  Larkin,  41  111.  413;  Swartz  v.  BaUou,  47  Iowa,  ISS;  Rickert 
V.  Snyder,  9  Wend.  416;  Miservey  v.  SneU  (Iowa)  G2  N.  W.  767.  Contra, 
Leffingwell  v.  Elliott,  10  Pick.  204;   Turner  v.  Miller,  42  Tex.  419. 

103  Norton  v.  Babcock,  2  Mete.  (Mass.)  510;  Furnas  v.  Durgiu,  119  Mass. 
500;  Hardy  v.  Nelson,  27  Me.  525;  Keeler  v.  Wood,  30  Vt.  242;  Sterling  v. 
Peet,  14  Conn.  245;  Weeks  v.  Barton  (Tex.  Civ.  App.)  31  S.  W.  1071  (but  see 
Gass  V.  Sanger  [Tex.  Civ.  App.]  30  S.  W.  502).  For  failure  of  title  of  one  of 
several  parcels  the  damage  is  the  value  of  that  parcel.  Grant  v.  Hill  (Tex. 
Civ.  App.)  .30  S.  W.  0.52. 

104  Coleman  v.  15:1  Hard's  Heirs,  13  La.  Ann.  5L2;  iJmiiiy  v.  Iluiikiiison,  27 
Beav.  .505. 

LAW  UA.M.— 21 


370  AVUONGS    Al'TKCTING    RKAL    PliOPKRTY.  (Ch.    13 

(b)  For  incumbrance  "which  causes   a  total   eviction,  the 

consideration  with  interest  and  costs  in  most  states, 
or  the  value  of  the  land  -with  interest  in  others; 
for  a  partial  eviction,  a  proportionate  amount  (p. 
370). 

(c)  For  a   removable  incumbrance,    the    reasonable    ex- 

pense of  removing  it,  not  exceeding  the  considera- 
tion or  the  value  of  the  land  (p.  371). 

Permanent  Incumbrances. 

When  a  grantor  has  conveyed  with  a  covenant  against  incum- 
brances, and  it  turns  out  that  there  is  a  permanent  incumbrance 
on  the  land,  such  as  a  right  of  way  or  other  easement,  the  grantee 
is  entitled  to  such  a  sum  as  will  compensate  him  for  the  decreased 
value  of  the  land,  regarded  as  a  permanent  injury.^"^  The  amount 
I'ecoverable  is  limited,  however,  by  the  sum  which  could  be  recovercnl 
for  a  total  loss  of  the  land.^°® 

Eviction  Total  or  Partial.. 

An  incumbrance  may  be  such  that  it  causes  the  eviction  of  the 
covenantee.  In  such  case  the  amount  of  recovery  is  measured  by 
the  same  rules  as  a  recovery  on  the  breach  of  a  covenant  of  war- 
ranty, and  the  same  conflict  in  the  cases  exists.^"'^  The  measure  of 
damages  is  either  the  consideration  paid,  with  interest  and  costs,^"^ 
or  the  value  of  the  land,  with  interest  from  the  time  of  eviction.^"^ 
When  the  eviction  is  temporary  only,  as  by  an  outstanding  term  of 
years  or  a  dower  interest,  the  measure  of  dajnages  is  the  value  of 
the  outstanding  interest.^ ^°     For  a  partial  eviction,  the  damages 

105  Bronson  v.  Coffin,  108  Mass.  175;  Harlow  v.  Thomas,  15  Pick.  GG;  Grant 
V.  Tallman,  20  N.  Y.  191;  Mackey  v.  Harmon,  34  Minn.  168,  24  N.  W.  702; 
Kellogg  V.  Malin,  62  Mo.  429;    Mitchell  v.  Stanley,  44  Conn.  312. 

IOC  Clark  v.  Zeiglor,  79  Ala.  ;J4G;   Koesteubader  v.  Peirce,  41  Iowa,  204. 

107  See  ante,  p.  368. 

108  Dimuiiek  v.  Lockwood,  10  Wend.  142;  Grant  v.  TaUman,  20  N.  Y.  191; 
Howell  V.  Moores,  127  111.  67,  19  N.  E.  8G3;  Patterson  y.  Stewart,  6  Watts  & 
S.  (Pa.)  527;  Stewart  v.  Drake,  9  N.  J.  Law,  139;  McGuftey  v.  Humes,  85 
Tenn.  26,  1  S.  W.  506;    Jenkins  v.  .Tones,  9  Q.  B.  Div.  128. 

109  Barrett  v.  Porter,  14  Mass.  143;    Horsford  v.  Wright,  Kirb.  (Conn.)  3. 

110  Rickert  v.  Snyder,  9  \^■end.  416;    Terry  v.  Drabenstadt,  68  Pa.  St.  400; 


§    160)  BREACH    OF    COVENANTS    IN    LEASES.  371 

recoverable  are  proportioned  to  the  value  or  price  of  the  part  lost, 
not  exceeding,  of  course,  the  amount  which  could  be  recovered  for 
a  total  eviction.^ ^^ 

Removable  Incumbrances. 

Where  incumbrances  exist,  such  as  mortgages,  which  can  be  re- 
moved by  the  payment  of  money,  the  expense  of  removing  the  in- 
cumbrance is  the  measure  of  the  covenantee's  damage;  ^^-  but  this 
must  not  exceed  the  price  or  value  of  the  land  as  the  case  may  be,^^' 
The  covenantee  must  not  pay  more  than  is  necessai'j  in  removing  the 
incumbrance/^* 

160.     SAME  ^COVENANTS  IN  LEASES. 

When  any  of  the  foregoing  covenants  occur  in  leases,  the  same 
rules  govern  the  damages  for  their  breach  as  when  they  are  found 
in  deeds.^^^  The  other  covenants  usually  inserted  in  leases  are 
mere  jcontracts,  for  the  breach  of  which  the  principles  of  damages 
have  already  been  discussed.^ ^' 

Tierney  v.  Whiting,  2  Colo.  620.  But  see  Harrington  v.  Mni-ph.v.  109  Mass. 
299. 

Ill  Harlow  v.  Thomas,  15  Pick.  (Mass.)  66;    Wright  v.  Nipple.  02  Ind.  310. 

iizPrescott  V.  Trueman,  4  Mass.  627;  Donahoe  v.  Emei-y,  9  Mete.  (Mass.) 
63;  Winslow  v.  McCall,  32  Barb.  241;  Hall  v.  Dean,  13  Johns.  10.1;  Hurd 
V.  Hall,  12  Wis.  112;  Ward  v.  Ashbrook.  78  Mo.  515;  Dilhihunty  v.  Railway 
Co.,  59  Ark.  699,  27  S.  W.  1002,  and  28  S.  W.  657.  And  see,  for  cases  giving 
nominal  damages,  McGuckin  v.  Milbank,  83  Hun,  473,  31  N.  Y.  Supp.  1049; 
Grant  v.  Tallman,  20  N.  Y.  191;    Tufts  v.  Adams,  8  Pick.  547. 

113  Johnson  v.  Collins,  116  Mass.  392;  Grant  v.  Tallman,  20  N.  Y.  191; 
Bailey  v.  Scott,  13  WMs.  618. 

114  Bradshaw  v.  Crosby,  151  Mass.  237,  21  N.  E.  47;  Coburn  v.  Litchfield, 
132  Mass.  449.  For  breach  of  covenants  to  remove  incumbrances,  see  Som- 
ers  V.  Wright,  115  Mass.  292. 

115  Dobbins  v.  Duquid,  65  IIL  404;  Sheets  v.  Joyncr,  11  lud.  App.  205.  ;;S 
X.  E.  830;  Clark  v.  Fisher,  54  Kan.  403,  38  I'ac.  41».;;  Wetzel  v.  Kii-licn-ek 
<Ohio)  40  N.  E.  1004. 

110  See  Beach  v.  Grain,  2  N.  Y.  80;  Thomsoii-Uuuslon  ElocU-ic  Co.  v. 
Durant  Land  Imp.  Co.,  144  N.  Y,  34,  39  N.  E.  7;  United  States  Tnist  Co.  v. 
O'Brien,  143  N.  Y.  2S4,  38  N.  E.  266;  Gulliver  v.  I'^owler.  M  Conn.  n.-.C.  :V) 
Atl.  852;  Trinity  Church  v.  Hlggins,  48  N.  Y.  532:  H.  V.  .Myers  Tailoring  Co. 
v.  Keeley,  58  .Mo.  App.  491;  Mrllciny  v.  Murr,  39  .M<l.  .".Ht;  Pciiley  v.  Walls, 
7  Mees.  &  \\.  60L 


372  BREACH    OF    MARRIAGE    PROMISE.  (Ch.    14 

CHAPTER  XrV. 

BREACH   OF  MARRIAGE  PROMISE. 

IGl.    In  General. 

162.  Compensatory  Damages. 

163.  Exemplary  Damages. 

IN  GENERAL. 

161.  Damages  for  breach  of  promise  of  marriage  are  both: 

(a)  Compensatory,  and 

(b)  Exemplary. 

COMPENSATORY  DAMAGES. 

162.  Compensation  may  be   recovered  for  all  the  natural 

and  probable  consequences  of  the  breach,  including 
both: 

(a)  Pecuniary  losses  (p.  373),  and 

(b)  Nonpecuniary  losses  (p.  373). 

Actions  for  breach  of  promise  of  marriage  are  peculiar  in  many 
respects.  The  action  is  nominally  for  a  breach  of  contract,  but  the 
measure  of  damages  is  fixed  by  rules  which  do  not  apply  to  other 
actions  of  contract.  They  are  awarded  upon  principles  more  com- 
monly applicable  in  actions  of  tort.^  "Damages  in  this  action  have 
never  been  limited  to  the  simple  rule  governing  actions  upon  simple 
contracts  for  the  payment  of  money."  ^  Compensation  for  mental 
suffering  ^  and  exemplary  damages  are  recoverable.  These  striking 
di (Terences  grow  out  of  the  nature  of  the  consequences  of  a  breach. 
In  most  ordinary  contracts,  the  damages  are  wholly  pecuniary,  and, 
as  has  been  seen,  are  governed  by  definite  rules.     But,  in  case  of  a 

1  Sherman  v.  Rawson,  102  Mass.  395. 

2  Thorn  v.  Knapp,  42  N.  Y.  474,  4So. 

swells  V.  Padgett,  8  Barb.  323;  Vanderpool  v.  Richardson,  52  Mich.  3.36, 
17  N.  W.  936;  Tobin  v.  Shaw,  45  Me.  331;  Tyler  v.  Salley,  82  Me.  128,  19  Atl. 
107;    Wilbur  v.  Johnson,  58  Mo.  GOO;    Allen  v.  Baker,  86  N.  C.  91. 


§    162)  COMPENSATORY    DAMAGES.  373 

breach  of  promise  of  marriage,  perhaps  the  principal  damage  Is  non- 
pecuniary.  Such  a  wrong  is  peculiarly  apt  to  cause  mental  suffer 
ing.  In  other  respects,  also,  the  damages  are  very  mnch  at  large. 
The  result  has  been  that,  as  in  most  torts,  the  damages  are  very 
much  within  the  sound  discretion  of  a  jury. 

Pecuniary  Losses. 

As  in  other  cases,  compensation  may  be  recovered  for  pecuniary 
losses  proximately  caused.  This  includes  the  money  value  or  world- 
ly advantage  of  a  marriage  which  would  have  given  plaintiff  a  per- 
manent home  and  an  advantageous  establishment.*  Evidence  of  de- 
fendant's financial  and  social  position  is  therefore  admissible."  The 
]>laintiff  is  entitled  to  such  damages  as  would  place  her  in  as  good 
a  position  pecuniarily  as  she  would  have  been  in  if  the  contract  had 
been  fulfilled.^  The  actual  outlay  in  preparation  for  the  marriage 
may  be  recovered,  if  it  is  specially  pleaded.'^ 

Nonpecuniary  Losses. 

The  nonpecuniary  losses  caused  by  a  breach  of  promise  of  mar- 
riage include  the  injury  to  reputation,®  wounded  affections,  mortifi- 
cation or  distress  of  mind,  and  the  like.'     The  amount  to  be  awarded 

*  Coolidge  V.  Neat,  129  Mass.  146;  Grant  v.  Wiley,  101  Mass.  356;  Har- 
rison V.  Swift,  13  Allen,  144. 

6  Bennett  v.  Beam,  42  Mich.  346,  4  N.  W.  8;  Berry  v.  Da  Costa,  L.  R.  1  C. 
P.  331;  Miller  v.  Rosier,  31  Mich.  475;  McPherson  v.  Ryan,  59  Micb.  33,  26 
N.  W.  321;  Rutter  v.  Collins,  103  Micb.  143,  61  N.  W.  267;  Crosier  v.  Craifj, 
47  Hun,  83;  Cbellis  v.  Chapman,  125  N.  Y.  214,  26  N.  E.  308;  KnifiPen  v. 
McConnell,  30  N.  Y.  285;  Olson  v.  Solverson,  71  Wis.  663,  38  N.  W.  329;  Rich- 
mond V.  Roberts,  98  111.  472;  Douglas  v.  Gausman,  68  111.  170;  Harrison  v. 
Cage,  Cartb.  467;  Johnson  v.  Travis,  33  Minn.  231,  22  N.  W.  624;  Lawrence 
V.  Coolie,  56  Me.  187.  Defendant's  reputation  for  wealth  may  be  shown. 
Stratton  v.  Dole.  45  Xeb.  472,  63  N.  W.  875;  Ortiz  v.  Navarro  (Te.\.  Civ. 
App.)  30  S.  W.  581;  Stribley  v.  Welz,  8  Ohio  Cir.  Ct  R.  571.  Evidence  of 
wealth  should  be  confined  to  general  reputation.  Kniffen  v.  McCounell,  30 
N.  Y.  285.  Plaintiffs  lack  of  property  may  be  shown.  Vandcrpool  v.  Ricli- 
ardson,  52  Mich.  IV-MJ,  17  N.  W.  9'M. 

«  I.awrence  v.  Cooke,  56  Me.  187.     Cf.  Miller  v.  Rosier,  31  Mich.  475. 

7  Glasscock  v.  Shell,  57  Tex.  215.  Sec,  also,  Stribley  v.  Welz,  8  Ohio  Cir. 
Ct.   R.  571. 

•  Johnson  v.  Caulkiiis,  1  Johns.  Ca.s.  110;  (Joddurd  v.  Wostcott,  82  Mit^h. 
180,  188.  46  N.  W.  242. 

6  Harrison  v.  Swift,  i:;  .\llcii.  114;     Wells  v.  l'a(l;;rU,  S  IJarb.  :V2:\;    .^li.;ili:in 


374  BREACH    OF    MARRIAGE    PROMISE.  (Ch.    14 

for  such  items  of  injury  is  necessarily  left  to  the  sound  discretion 
of  the  jury.^°  If  their  verdict  is  so  excessive  or  inadequate  as  to 
indicate  passion  or  prejudice,  it  may  be  set  aside.^^  As  in  other 
cases  where  the  loss  is  nonpecuniary  and  the  damages  are  discre- 
tionary with  the  jury,  evidence  in  aggravation  or  mitigation  is  ad- 
missible to  affect  their  estimate. 

Same — Circumstances  of  Aggravation. 

In  estimating  the  damages,  the  jury  may  take  into  account  the 
fact  that  plaintiff  had  been  seduced  by  defendant,  as  tending  to  in- 
crease the  mortification  and  distress  suffered  by  her,^^  "If  by  rea- 
son of  an  imprudent  and  criminal  act,  in  which  both  participated, 
she  is  brought  to  such  a  state  that  the  suffering  occasioned  to  her 
feelings  and  affections  must  necessarily  be  increased  by  his  abandon- 
ment, then  that  would  be  but  an  inadequate  and  poor  compensation 

v.  Barry,  27  Midi.  217;  Goddard  v.  Westcott.  82  Mich.  ISO,  ISS,  4G  N.  W. 
242;  HoUoway  v.  Griffith,  32  Iowa,  400;  Wilbur  v.  Johuson,  58  Mo.  GOO; 
Coolidge  V.  Neat,  129  Mass.  146.  Plaintiff  may  show  that  she  appeared  sin- 
cerely attached  to  defendant.     Sprague  v.  Craig,  51  111.  288. 

10  Tobin  v.  Shaw,  45  Me.  ool;  Coryell  v.  Colbaugh,  1  N.  J.  Law,  77;  Stout 
v.  Prall,  1  N.  J.  Law,  79;    Southard  v.  Rexford,  6  Cow.  254. 

11  Richmond  v.  Roberts,  98  111.  472;  Douglas  v.  Gausman,  68  111.  170;  Good- 
all  v.  Thurman,  1  Head.  (Tenn.)  209;    Hattin  v.  Chapman,  46  Conn.  607. 

12  Sherman  v.  Rawson,  102  Mass.  395;  Berry  v.  Da  Costa,  L.  R.  1  C.  P.  331; 
Paul  V.  Frazier,  3  Mass.  71;  Kelley  v.  Riley,  106  Mass.  339;  Kniffon  v.  Mc- 
Connell,  30  N.  Y.  285;  Wells  v.  Padgett,  8  Barb.  323;  Tubbs  v.  Van  Kleek, 
12  111.  446;  Burnett  v.  Simpkins,  24  111.  264;  Bennett  v.  Beam,  42  Mich.  346, 
4  N.  W.  8;  Sheahan  v.  Barry,  27  Mich.  217;  Bird  v.  Thompson,  96  Mo.  424, 
9  S.  W.  788;  Coil  v.  Wallace,  24  N.  J.  Law.  291;  Hattin  v.  Chapman,  46 
Conn.  606;  Daggett  v.  Wallace,  75  Tex.  352,  13  S.  W.  49.  But  it  must  be 
pleaded.  Leavitt  v.  Cutler,  37  Wis.  46;  Tyler  v.  Salley,  82  Me.  128,  19  Atl. 
107;  Gates  v.  McKinney,  48  Ind.  562.  Contra,  Jennette  v.  Sullivan,  63  Hun, 
361,  18  N.  Y.  Supp.  266.  Loss  of  time  and  medical  expenses  resulting  from 
seduction  cannot  be  recovered.  Tyler  v.  Salley,  82  Me.  128,  19  Atl.  107; 
Giese  v.  Schultz,  53  Wis.  402,  10  N.  W.  59S.  Damages  may  be  recovered  for 
the  pain  and  humiliation  of  giving  birth  to  a  bastard.  Wilds  v.  Began,  57 
Ind.  453.  In  some  states  seduction  cannot  be  proved  in  aggravation  of  dam- 
ages. Weaver  v.  Bachert,  2  Pa.  St.  80;  Gring  v.  Lerch,  112  Pa.  St.  244,  2-30, 
3  Atl.  841;  Tyler  v.  Salley,  82  Me.  128,  19  Atl.  107;  Burks  v.  Shain,  2  Bibb, 
iMl.  It  is  for  the  jury  to  say  whether  they  will  consider  the  fact  of  seduc- 
tion in  estimating  damages,  and  it  is  error  to  instruct  that  they  must  consider 
it     Osmun  v.  Winters,  25  Or.  260,  35  Pac.  250. 


§    162)  COMPENSATORY    DAMAGES.  375 

which  did  not  take  it  into  account."  ^'  The  seduction  must  have 
been  accomplished  by  means  of  the  promise  of  marriage.^* 

In  connection  with  the  question  how  far  plaintiff  has  been  wound- 
ed in  her  affections,  or  suffered  mortification  or  distress,  the  jury 
may  consider  the  length  of  time  during  which  the  engagement  had 
subs'isted,^^  and  the  abruptness  and  humiliation  with  which  it  was 
broken.^®  Where  a  woman  has  been  wantonly  deserted  after  a  long 
engagement,  and  when  her  affections  have  been  deeply  implanted, 
her  wounded  spirit,  the  disgrace,  the  insult  to  her  feelings,  the  prob- 
able solitude  which  may  result  by  reason  of  such  desertion,  after  a 
long  courtship,  are  all  matters  to  be  considered  by  the  jury.^^  For 
the  purjxise  of  enhancing  damages,  the  plaintiff  may  prove  that  she 
announced  the  fact  of  her  engagement  to  her  friends,  and  invited 
them  to  attend  the  wedding. ^^ 

In  Southard  v.  Rexford  ^^  it  was  held  that  the  attempt  to  justify 
a  breach  of  promise  of  marriage  by  stating,  upon  the  record,  as  the 
cause  of  desertion  of  the  plaintiff,  that  she  had  repeatedly  had 
criminal  intercourse  ^ith  various  persons,  is  a  circumstance  which 
ought  to  aggravate  damages,  when  there  is  a  complete  failure  to 
prove  the  charge.  The  reason  for  the  rule  has  been  said  to  be  that 
a  verdict  for  nominal  or  trifling  damages  under  such  circumstances 
would  be  fatal  to  the  character  of  the  plaintiff.  It  has  been  inti- 
mated that  the  rule  only  applies  where  the  justification  is  pleaded, ^^ 
but  it  has  been  held  to  be  equally  applicable  where  evidence  of  such 
facts  is  offered  in  mitigation,  without  being  specially  pleaded.^ ^  It 
is  certainly  an  anomaly,  in  an  action  for  a  breach  of  conti'act,  to  hold 

13  Sherman  v.  Rawson.  102  Mass.  o95. 

1*  Espy  V.  Jones,  37  Ala.  379. 

isCoolidge  v.  Neat,  129  Mass.  14<1:    Grant  v.  Willoy,  101  Afass.  ."hjO. 

16  McPhcrson  v.  Ryan,  59  Mich.  33,  26  N.  W.  ;;21. 

17  Coolidge  V.  Neat,  129  Mass.  146.  Plaintiffs  altered  social  position  may 
be  considered.  Smith  v.  Woodfine,  1  C.  B.  (N.  S.)  660;  Berry  v.  Da  Costa, 
L.  R.  1  C.  P.  331. 

i«  Reed  v.  Clark,  47  Cal.  194;  VaudoriK)ol  v.  Richardson,  52  .Mich.  336,  17 
N.  W.  9:J6. 

18  6  Cow.  254. 

20  Kniffcu  V.  McConnoll,  30  N.  Y.  2.S5,  per  Infjraliam.  J. 

21  Thorn  v.  Knapp.  42  N.  Y.  474;  Kuiffeu  v.  McCounell,  30  N.  Y.  2S5;  I>avis 
V.   Slaj;le,  27  -Mo.  CUO. 


37 G  BREACH    OF    MARRIAGE    PROMISE.  (Ch.    14 

that  setting  up  matters  in  an  answer  to  excuse  such  breach,  the 
l)roof  of  which  fails,  is  an  aggravation  of  damages,-^  but  this  action 
is  anomalous  in  many  other  respects.  The  rule  has  been  denied,-^ 
and  in  some  states  it  applies  only  when  the  justification  was  made 
in  bad  faith.-* 

Same — Circumstances  in  Mitujation. 

The  defendant  may  show,  in  mitigation  of  damages,  licentious 
conduct  in  plaintiff,  and  her  general  character  as  to  sobriety  and 
virtue,  without  any  limitation  as  to  time.  "The  object  of  this  action 
is,  not  merely  compensation  for  the  immediate  injury  sustained,  but 
damages  for  the  loss  of  reputation.  This  must  necessarily  depend 
on  the  general  conduct  of  the  party  subsequent  to,  as  well  as  pre- 
vious to,  the  injury  complained  of,  and  the  damages  to  be  recovered, 
as  in  actions  for  defamation,  ought  to  be  regulated  by  all  the  circum- 
stances of  the  case.  The  proof  of  reputation  cannot  depend  on  time. 
It  is  a  question  which  is  general  in  its  nature;  and  the  inquiry  re- 
specting it,  when  material,  must  be  general."  ^^  A  breach  of  the 
criminal  law  by  the  plaintiff,  as  by  profane  cursing  and  swearing, 
though  not  a  defense  to  the  action,  may  be  given  in  mitigation  of 
damages.-®  Evidence  of  plaintiff's  abusive  conduct  towards  de- 
fendant's mother  and  sister,  and  of  her  lewd  and  immodest  conduct, 
can  be  considered  only  in  mitigation  of  damages.-^  Consanguinity, 
not  within  the  forbidden  degrees,  will  not  mitigate  or  excuse  a  breach 
of  promise  to  marry. -^  The  jury  cannot  consider,  in  mitigation  of 
damages,  the  probability  that,  owing  to  defendant's  want  of  love 
and  affection,  such  as  a  husband  should  bear  his  wife,  the  mar- 
riage would  be  an  unhappy  one.     'Tt  virtually  would  have  been  say- 

2  2  Kniffen  v.  McConnell,  30  N.  Y.  L'85;    Leavitt  v.  Cutler,  37  Wis.  46,  53. 

2  3  Hunter  v.  Hatfield,  68  Ind.  416. 

2*  Alberts  v.  Albertz,  78  Wis.  72,  47  N.  W.  95;  Leavitt  v.  Cutler.  37  Wis. 
46;  Blackburn  v.  Mann,  85  111.  222;  Fidler  v.  McKinley,  21  111.  308;  Denslow 
V.  Van  Horn,  16  Iowa,  476;  Reed  v.  Clark,  47  Cal.  194.  See,  also,  Simp.soii 
V.  Black,  27  Wis.  206. 

2  5  Johnson  v.  Caulkins.  1  Johns.-  Cas.  116,  3  Johns.  Cas.  437.  See,  gener- 
ally, Button  V.  McCanley,  38  Barb.  413,  5  Abb.  Prac.  (N.  S.)  29;  Alberts  v. 
Albertz,  78  Wis.  72,  47  N.  W.  95;    Williams  v.  Hollingsworth,  6  Baxt.  12. 

2  6  Beny  v.  Bakeman,  44  Me.  164. 

2  7  Alberts  V.  Albertz,  78  Wis.  72,  47  A.  W.  95. 

28  Id. 


§    162)  COMPENSATORY    DAMAGES.  377 

ing  that  the  plaintiff  ought  not  to  recover  the  damage  actually  sus- 
tained because  the  defendant  might  have  inflicted  a  greater.  In 
other  words,  it  would  be  oif setting  the  injury  that  he  might  have 
done  against  that  already  inflicted."  -^  It  has  been  held  that  the 
fact  that  defendant  is  afflicted  with  an  incurable  disease  may  be 
«hown  in  mitigation  of  damages.  In  Johnson  v.  Jenkins,^"  defend- 
ant was  permitted  to  show,  in  mitigation  of  damages,  that  he  refused 
to  consummate  the  marriage  because  of  the  settled  opposition  of  his 
mother,  who  was  in  infirm  health.  It  has  been  held  that  an  offer 
"by  the  defendant  to  marry  plaintiff,  made  after  suit  brought,  is  not 
admissible  in  mitigation  of  damages.^ ^ 

Defendant's  knowledge,  at  the  time  the  promise  is  made,  of  the 
facts  relied  on  as  a  defense  or  to  mitigate  the  damages  is  important. 
Thus,  if  the  promise  is  made  in  ignorance  of  the  fact  that  plaintiff 
had  borne  a  bastard  child,  or  had  indulged  in  illicit  intercourse  with 
other  men,  such  facts  constitute  a  complete  bar  to  the  action;  ^- 
but,  if  known  to  defendant,  they  constitute  no  defense,^''  and  at 
most  can  be  considered  only  in  mitigation.^*  Thus,  it  has  been  held 
that,  if  the  lack  of  virtue  is  relied  on  to  absolve  the  defendant  from 
the  fulfillment  of  his  contract,  his  knowledge  of  that  fact  must  have 
been  acquired  after  entering  into  the  engagement,  and  the  defend- 
ant must  have  terminated  the  engagement  immediately  upon  being 
apprised  of  the  tr-uth.  But  the  bad  character  of  the  plaintiff  may 
be  shown  in  mitigation  of  damages,  even  though  the  defendant  was 
cognizant  of  the  facts  at  the  time  of  making  the  contract,  for  the 

2»  Piper  V.  Kingsbniy,  4S  Vt.  480. 
3  0  24  N.  Y.  252. 

31  Kurtz  V.  Frank.  7G  Ind.  504;  Bennett  v.  Beam,  42  Mieb.  o4G.  352,  4  N.  W. 
8;  Holloway  v.  Griffith,  32  Iowa,  409;  Southard  v.  Ilexlord,  (3  Cow.  254. 
€ontra,  Kelly  v.  Renfro,  9  Ala.  325. 

32  Boynton  v.  Kellofjg,  3  Mass.  189;  Guptill  v.  Verbaclc,  58  Iowa,  98,  12 
N.  W.  125;  Beri-y  v.  Bakeman,  44  Me.  104;  Budd  v.  Crea,  6  N.  J.  Law,  370; 
Burnett  v.  Simpkins,  24  111.  264;  Johnson  v.  Travis,  33  Minn.  2:51.  22  N.  W. 
G24.     Such  facts  must  be  pleaded.     Smith  v.  Braun.  37  La.  Ann.  225. 

"3  Burnett  v.  Simpkins,  24  111.  204;  .Johnson  v.  Travis,  33  Minn.  2;J1,  22  N. 
W.  024;  Denslow  v.  Van  Horn,  KJ  Iowa,  470;  Kolloy  v.  lll^lilield,  15  Or. 
'217,  14  Pac.  744;  Irving  v.  Green  wont  I,  1  Car.  &.  V.  35(,i;  Bi-m  li  v.  .Mi-riick. 
1  Car.  &  K.  463. 

8«  Denslow  v.  Van  Horn,  10  lowii,  470. 


37S  BREACH    OF    MAKRIAG1-:    IMajMISE.  (Oil.    14 

reason  that  its  breach  does  not  result  in  the  same  injury  as  if  the 
character  had  been  good.^° 


EXEMPLARY  DAMAGES. 

163.  Exemplary  damages  are  awarded   on  the  same   prin- 
ciples as  in  tort  actions. 

Actions  for  breach  of  promise  of  marriage  are,  as  to  damages, 
classed  with  actions  for  torts;  and  the  motives  of  defendant  may  be 
inquired  into  with  a  view  to  furnishing  ground  for  punitive  dam- 
rjggg.  3  6  Precisely  the  same  rules  govern  the  allowance  of  exemplary" 
damages  as  would  be  applied  if  the  action  were  in  tort."  Evidence 
of  the  circumstances  under  which  the  promise  was  broken  is  ad- 
missible in  aggravation  or  mitigation  of  damages.  'It  is  always 
competent,  for  the  purpose  of  enhancing  the  damages,  to  prove  the 
motive  that  actuated  the  defendant;  that  he  entered  into  the  con- 
tract, and  broke  it,  with  bad  motives  and  a  wicked  heart;  and  it 
is  competent  for  him  to  prove,  in  mitigation  of  damages,  that  his 

3:.  Burnett  v.  Siinpkins,  24  111.  264;  Kantzler  v.  Grant,  2  111.  App.  236.  See, 
also,  Butler  v.  Esclileman.  IS  111.  44;  Doubet  v.  Kirkman,  15  111.  App.  622; 
Denslow  v.  Van  Horn,  16  Iowa,  476;  Palmer  v.  Andrews,  7  Wend.  142;  Von 
Storch  V.  Griffin,  77  Pa.  St.  504;  Biidd  v.  Crea,  6  N.  .1.  Law,  370;  Dupont  v. 
McAdow,  6  Mont.  226,  9  Pac.  925.  "Any  misconduct  showing  that  the  party 
complaining  would  be  an  unfit  companion  in  married  life  may  be  given  in 
evidence  in  mitigation."  Suth.  Dam.  §  990,  citing  Leeds  v.  Cook,  4  Esp.  256; 
Button  V.  ]McCauley,  5  Abb.  Prac.  (N.  S.)  29;  Alberts  v.  Albertz,  7S  Wis.  72, 
47  X.  W.  95.  Declarations  of  plaintiff  that  she  cared  nothing  for  defendant, 
and  only  wanted  his  money,  and  to  spite  his  family,  are  admissible  in  miti- 
gation of  damages.  Miller  v.  Rosier,  31  Mich.  475.  But  see  Miller  v.  Hayes, 
34  Iowa,  496.  See,  also,  Robinson  v.  Graver,  88  Iowa,  381,  55  N.  W.  492. 
Where  defendant  had  seduced  plaintiff  under  promise,  it  has  been  held  that 
he  cannot  prove  her  general  bad  character  between  the  promise  and  the 
breach.     Boynton  v.  Kellogg,  3  Mass.  189;    Espy  v.  Jones,  37  Ala.  379. 

3  6  Thorn  v.  Knapp,  42  N.  Y.  474. 

3  7  See  ante,  p.  200;  Chellis  v.  Chapman,  125  N.  Y.  214,  26  N.  E.  308.  The 
allowance  of  exemplary  damages  is  discretionary  with  the  jurj',  and  it  is  re- 
versible error  to  instruct  them  that,  if  they  find  that  defendant  purposely 
wronged  plaintiff  and  that  his  conduct  was  malicious,  they  are  bound  to 
give  exemplai-y  damages.  Jacobs  v.  Sire,  4  Misc.  Rep.  398,  23  N.  Y.  Supp. 
1063. 


§    163)  EXEMPLARY    DAMAGES.  37^' 

motives  were  not  bad,  and  that  his  conduct  was  neither  cruel  nor 
malicious.  In  the  case  of  Johnson  v.  Jenkins,^®  it  was  held  com- 
petent, in  mitigation  of  damages,  for  the  defendant  to  prove,  when 
asked  by  the  plaintifif  why  he  had  discontinued  his  visits  to  her,  that 
he  declared  that  his  affection  and  regard  for  her  were  undiminished, 
but  that  he  could  not  marry  her,  because  his  parents  were  so  violent- 
ly opposed  to  the  match.  Judge  Allen,  writing  the  opinion  of  the 
court,  says:  "Every  circumstance  attending  the  breaking  off  of  the 
engagement  becomes  part  of  the  res  gestae.  The  reasons  which  were 
operative  and  influential  with  the  defendant  are  material,  so  far  as 
they  can  be  ascertained;  and  whether  they  are  such  as,  tending  to 
show  a  willingness  to  trifle  with  the  contract  and  with  the  rights  of 
the  plaintiff,  should  enhance  the  damages,  or,  on  the  contrary,  show- 
ing a  motive  consistent  with  any  just  appreciation  of  and  regard  for 
his  duties,  should  confine  the  damages  within  the  limit  of  a  just 
compensation,  will  always  be  for  the  jury  to  determine."  '° 

3  8  24  N.  y.  252. 

3  9  Thorn  v.  Knapp,  42  N.  Y.  474.  See,  generally,  Chellis  v.  Chapman,  12.'> 
N.  Y.  214,  26  N.  E.  308;  Coil  v.  Wallace,  24  N.  .T.  Law,  291;  Coryell  v.  Col- 
baugh,  1  N.  J.  Law,  77;  Johnson  v.  Travis,  33  INIinu.  231,  22  N.  W.  624;  Kel- 
ley  V.  Highfield,  15  Or.  277,  14  Pac.  744;  Goddard  v.  Westcott,  82  Mich.  ISO, 
46  N.  W.  242;  Dupont  v.  McAdow,  6  Mont  226,  9  Pac.  925;  Moore  v.  Hop- 
kins, 83  Cal.  270,  23  Pac.  318.  Evidence  of  matters  in  aggravation  of  dam- 
ages which  occur  after  the  suit  is  brought  is  incompetent.  On  this  principle 
a  letter,  addressed  by  defendant  to  plaintiff,  accusing  her  of  unchasteness 
and  containing  many  gross  and  indecent  expressions,  was  excluded.  Green- 
leaf  V.  McColley,  14  N.  H.  303.  Charges  of  immorality  in  an  affidavit  during 
progress  of  trial  are  inadmissible.     Leavitt  v.  Cutler,  37  Wis.  46. 


TABLE  OF  CASES  CITED. 


[the  figures  refer  to  pages.] 


Abbot  V.  McCadden,  315. 
Abeles  v.  Telegraph  Co.,  292. 
Aber  v.  Bratton,  73,  74. 
Abrahams  v.  Cooper,  98. 
Abrams  v.  Kounts,  134. 
Ackerman  v.   Emott,  174. 
Ackerson  v.  Railway  Co.,  219. 
Adams  V.  Adams,  175. 

V.  Cordis,  88,  198. 

v.  Fort   Plain    Bank,    161. 

V.  Gardner,  227. 

V.  O'Connor,  119. 

V.  Palmer,  148. 

V.  Railroad  Co.,  81-84. 

v.  Robinson,  26. 

T.  Smith,  94,  99,  106. 
Adams  Exp.  Co.  v.  Egbert,  73 

V.  Milton,  162. 
Adamson  v.  Petersen,  120. 
Addams  v.  Heffernan,  175. 
Adkins  v.  Moore,  119. 
Agincourt,  The,  14. 
Agnew  V.  Johnson,  18.1. 
Agricultural  &  M.  Ass'n  v.  State,  326. 
Ahern  v.  Steele.  323. 
Alabama  G    S.  R.  Co.  v.  Arnold,  225. 

V.  Heddleston,  258. 

V.  McAlpine,  165. 
Alabama  Iron  Works  v.  Hurley,  76. 
Alberts  v.  Albertz,  376,  378. 
Alder  v.  Keighley,  61. 
Aldrich  V.  Dunham,  148. 

V.  Goodell,  .59. 

V.  Sager.  50. 

V.  Weeks,  110. 
Aid  worth  v.  City  of  Lynn,  83, 
Alexander  v.  Blodgett,  90,  101. 

V.  Ilerr.  355. 


Alexander  v.  Humber,  95. 

V.  Jacoby.  47.  89,  90. 

V.  Kerr.  3G2. 

V.  Telegraph  Co.,  274,  281. 

V.  Town  of  New  Castle,  46. 
Allaback  v.  Utt,  215, 
Allaire  v.  Whitney,  2,  27. 
Allegheny  v.  Zimmerman,  51. 
Allen  V.  Atkinson,  364 

V.  Baker,  372. 

V.  Blunt,  88. 

V.  Brazier,  135,  136,  142. 

V.  Butman,  120. 

V.  Dykers,  185. 

V.  Ferry  Co.,  98. 

V.  Hallet,  14. 

V.  Jarvis,  238. 

V.  Mohn,  366. 

V.  Pioneer  Press  Co.,  111. 

V.  Railway  Co.,  94. 

V.  Smith.  353. 
Allender  v.  Railroad  Co.,  GS. 
AUis  V.  Niuiuger  90. 
Allison  V.  Cliandler,  41,  53,  70,  74,  211. 

V.  Chicago  &  N    W.  R.  Co.,  37. 

V.  Juniata  Co.,  154. 
Alloway  v.  City  of  Nashville.  167,  186, 

234. 
Alls  V.  McLean,  75. 
Althorf  V.  Wolfe.  117,  312. 
Alvord  V.  \A'aggoiier.  3(;8. 
Amer  v.  Longstreth,  212. 
American  Bible  Soc.  v.  Wells,  150. 
American  Cent.   Ins.  Co.   v.   McLana- 

than,  142. 
American  Exp.  Co.  v.  I'arsons,  181. 
American   Print    Works  v.    Lawrence 

14. 
American  I'nioii  Tel.  Co.  v.  Daughtery, 
292,  296. 


i-Aw  D  \.\r. 


(881) 


^82 


CASES  CITED. 


[The  fijnu-es  refer  to  pages.] 


American  Water- Works  Co.  v.  Dough- 
erty, lOG. 
Ames  V.  Hilton,  210. 

V.  Moir,  241. 
Amiable  Nancy,  The,  217. 
Amistad  de  Rues,  La,  72. 
Amory  v.  McGregor,  149. 
Amoskeag  Manuf'g  Co.  v.  Goodale,  27 
Amy  V.  City  of  Dubuque,  173. 
Anderson  v.  Railroad  Co.,  302,  334. 

V.  Taylor,  97. 

V.  Truitt,  366. 
Andrews  v.  Askey,  99. 

V.  Clark,  195. 

V.  Durant,  149,  164,  165,  185. 

V.  Glenville  Woolen  Co.,  89. 

v.  Stone.  225. 
Anketel  v.  Converse,  174. 
Annas  v.  Railroad  Co.,  339. 
Annis  v.  Upton,  221. 
Ansley  v.  Peters,  162. 
Anthony  v.  Railroad  Co.,  95. 
Applegate  v.  Jacoby,  134. 
AppoUon,  The,  88. 
Arcambel  v.  Wiseman,  88. 
Arents  v.  Com.,  173. 
Argotsinger  v.  Vines,  358. 
Arkansas  Yal.  Laud  &  Cattle  Co.  v. 

Mann,  186,  235. 
Armfield  v.  Nash,  68. 
Armory  v.  Delamirie,  119. 
Armstrong  v.  Piei'son,  88. 

V.  Turner,  240. 
Arnold  v.  Jewett,  112. 
Arnott  V.  Redfern,  145. 
Arrington  v.  Railroad  Co..  195. 
Arrowsmith  v.  Gordon,  .59. 
Arthur  v.  The  Cassius,  252. 

v.  Railway  Co.,  165. 
V.  Wheeler  &  Wilson  Manuf'g  Co., 
157. 
Arundel  v.  McCulloch.  14. 
Ashby  V.  White,  1,  8,  11,  16.  19,  25,  31. 
Ashe  V.  County  of  Harris,  154. 
Asher  v.  Cabell,  298. 
Ashtown's  Lessee  v.  White,  131. 
Ashuelot  R.  Co.  v.  Elliot.  169. 
Aslin  V.  Parkin,  3."i5. 
Atchison.  T.  &  S.  F.  R.  Co.  v.  Brown, 
330. 
V.  Hughes.  347. 
V.  McGiunis,  10,  94. 


Atchison,  T.  &  S.  F.  R.  Co.  v.  Weber, 
349. 

V.  Wilson,  302,  315. 
Atchison  &  N.  R.  Co.  v.  Garside,  13. 
Atkins  V.  Gladwish,  87. 

V.  Yeomans,  356. 
Atkinson  v.  Atlantic  &  P.  R.  Co.,  148. 

V.  Hewett,  120. 

V.  Transportation  Co.,  50. 
Atkisson  v.  The  Castle  Gardeu,  2.53. 
Atkyns  v.  Kinuier,  136. 
Atlanta  &  W.  P.  Ry.  Co.  v.  Newton, 

312. 
Atlantic   &   G.   W.   Ry.   Co.   v.  Dunn, 
208,  218. 

V.  Koblentz.  167. 
Atrops  V.  Costello,  304,  324. 
Atwood  V.  Lucas,  238. 
Au  V.  Railroad  Co..  302. 
Aultman  v.  Stout,  250. 
Aultman  &  Taylor  Co.  v.  Hethering- 

ton,  249. 
Aurentz  v.  Porter,  196. 
Aurora  City  v.  West,  173. 
Aurora    Hill   Consol.    Min.    Co.    v.    85 

Min.  Co.,  358. 
Austin  V.  Mining  Co.,  358. 

V.  Wilson,  09,  216. 
Austin  Rapid  Transit  Ry.  Co.  v.  Cul- 

len,  323,  347. 
Austrian  &  Co.  v.  Springer,  243. 
Averett  v.  Brady,  3.53. 
Averill  Coal  &  Oil  Co.  v.  Verner.  172. 
Avery  v.  Ray,  109. 
Ayers  v.  ;Metcalf,  148. 
Ayres  v.  Pease,  142. 

V.  Railway  Co.,  255. 


B 


Backhouse  v.  Bonomi,  8. 
Backus  v.  Minor,  173. 
Badger  v.  Titcomb,  80. 
Bagby  v.  Harris.  17. 
Baggett  V.  Beard,  90. 
Bagley  v.  Cleveland  Rolling-Mill  Co. 
69. 

V.  Fiudlay,  241. 

V.  Peddie,  132,  135,  136. 

V.  Smith,  75. 
Bailey  v.  Bailey,  109. 


CASES   CITED. 


383 


[The  figures  refer  to  pages.] 


Bailey  v.  Scott,  371. 
Baiu  y.  F'otliergill.  3G5. 
Bainbridge  v.  Wilcocks,  155. 
Baird  v.  Tolliver,  137. 
Baker  v.  Bolton,  297,  298. 
V.  City  of  Madison,  235. 
V.  Drake.  4,  191,  192. 
V.  Green.  31. 

V.  Manhattan  Ry.  Co.,  71. 
V.  Wheeler,  164. 
Baker's  Appeal.  197. 
Baldwin  v.  Bradley,  119. 
V.  Porter,  117. 

V.  Telegraph  Co.,  oG,  2.S3,  284,  292. 
V.  United  States  Tel.  Co.,  62. 
Baldy  v.  Stratton,  6.  102. 
Bales  V.  Clark.  214. 
Ball  V.  Britton.  75. 
V.  Bruce,  100. 
V.  Horrigan,  9S,  109. 
V.  Liney.  114. 
Ballou  V   Farnum,  93.  105. 
Baltimore  City  Pass.  Ry.  Co.  v.  Kemp, 
37,  43,  50,  258,  259. 
V.  Sewell,  157,  195. 
Baltimore    Permanent   Bldg.    &    Laud 

Soc.  V.  Smith,  366. 
Baltimore  &  L.  T.  Co.  v.  Cassell,  37. 
Baltimore  &  O.  R.  Co.  v.  Bambrey,  97. 
V.  Barger,  218. 
V.  Blocher,  218. 
V.  Carr.  33.  92.  230.  260. 
V.  Noell.  303.  331. 
V.  Pumphrey.  2.">4. 
V.  Stanley,  316.  347. 
V.  State,  312-314.  333. 
V.  Wightman,  312,  316,  342. 
Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist 
Church,  .362. 
V.  Mackey,  .3.39. 
V.  Roaney,  35.  45. 
Baltimore    &    R.    Turnpike    Road    v. 

State,  313. 
Baltimore    &    Y.    Turnpike   v.    Boouo, 

208. 
I'.altzer  v.  Railroad  Co.,  2.32. 
Bancroft  v   City  of  Camliridge,  13. 
Bangor  &  P.  R.  Co.  v.  McComb,  167. 
Bangs  V.  Little.  14. 
Bank  of  Metinpolis  v.  Guttscliliek.  222. 
Bank    of    Montgomery    Co.    v.    Reese. 
187.  189,  193. 


Banks  v.  McClellan,  174. 
Barbee  v.  Reese,  37,  96. 
Barber  v.  Scott.  20. 
Barbour  v.  Nichols,  364. 

V.  Stephenson,  99,  106. 
Barclay  v.  Kennedy,  173. 
Bare  v.  Hoffman.  81,  l(i6. 
Barker  v.  Dixie,  233. 
Barlass  v.  Braash.  186. 
Barley  v.  Railroad  Co.,  302. 
Barnard  v.  Harrington,  3. 

V.  Poor,  75,  87. 
Barnes  v.  Brown,  243. 
V.  Campbell,  106. 
V.  Hathorn.  363. 
V.  Jones,  360. 
V.  Martin.  96. 
Barnett  v.  Luther,  30. 
Barnum  v.  Railway  Co.,  350. 
Baron  v.  Abell.  355. 
Barr  v.  Logan.  241. 

V.  :Moore.  214.  216. 
Barrelett  v.  Bellgard.  116. 
Barrett  v.  Porter,  370. 

V.  Telegraph  Co.,  285. 
Karrick  v.  Scliifferdecker,  81,  83,  357. 
Barringer  v.  King,  150. 
Barron  v.  Morrison.  156. 
V.  Mullin.  181.  240. 
V.  Railroad  Co..  3.-.O. 
Barrow  v.  Aruaud.  66,  238,  242, 

V.  Rhiuelandcr,  172. 
Barry  v.  Bennett.  185. 

V.  Harris,  135. 
Bartells  v.  Redfield.  155. 
Bartelt  v.  Braunsdorf.  222. 
Barth  v.   Mcrritt,  231. 
Bartlett  v.  Bank.  223. 
V.  Blaufhaid,  245. 
V.  Kidder,  121. 
Barton  v.  Kavauaugli.  20. 
Barton  Coal  Co.  v.  Co.\.  '.'>'<S. 
Bass  V.  Railway  Co.,  220. 
Bassett  v.  Salisbury  ALanufg  Co.,  29. 
P.asten  v.  Butter,  248. 
Batch!  Iderv.  B.irlholuniew.  228. 
Bates  V.  Clark.  117. 
V.  Courtwiiglit,  114. 
V.  Stansell.  191. 
Batlorson  v.  Railway  Co.,  106,  2G3. 
B.itlin  V.  Bigelow.  3."3. 
Biitlishiil   V.  RiM'd,  .361. 


B84 


CASES   CITED. 


[The  figures  refer  ;o  cages.  1 


Bailor  V.  Gottmaubaiisen.  211. 
Baxrudale  v.  Uaihvay  Co.,  89. 
Bayliss  v.  Fisher,  2. 
Beach  v.  Crain,  79.  SO,  371. 

V.  Hancock,  101. 

V.  Trudgain,  14. 
Boall  V.   Silver,   156. 
Beals  V.  Guernsey,  149,  164. 
Bean  v.  Chapman,  155. 
Beard  v.  Skeldon.  338. 
Beardmore  v.  Carrington,  201. 
Bearss  v.  Preston,  120. 
Beasley    v.    Telegraph    Co.,    102,    104, 

277.  290. 
Beattii'  v.  Moore.  23.3,  234. 
Beauchamp  v.  Saginaw  Alining  Co.,  37. 
Beaupre  v.  Telegraph  Co.,  2G7,  292. 
Beavers  v.  Smith.  350. 
Beck  V.  Do  well.  212. 

V.  Thompson.  96.  206. 
Becker  v.  Dupree,  209,  217. 
Beckett  v.  Railway  Co.,  342. 
Bedell  v.  Shaw,  354. 
Bedford  v.  McKnowl,  99. 
Beocher  v.  Ferry  Co.,  207. 
Beede  v.  Lamprey,  186,  358. 
Beeman  v.  Banta,  61,  250. 
Beems  v    Railway  Co.,  340. 
Beers  v.  Board  of  Health,  69. 

Y.  Packet  Co.,  220. 
Beeson  v.  Mining  Co.,  303. 
Behm  v.  Telegraph  Co.,  292. 
Beideman  v.  Atlantic  City  R.  Co.,  13. 
Belknap  v.  Railroad  Co.,  211,  218. 
Bell  V.  Medford,  355. 

V.  Norfolk  S.  R.  Co.,  13. 

V.  Railway  Co.,  94,  207,  2(50. 

V.  Reynolds,  244. 
Belloc  V.  Davis.  196. 
Bellows  V.  Sackett,  362. 
Bell's  Adm'rs  v.  Logan,  149. 
Bench  v.  Merrick,  377. 
Bender  v.  Fromberger,  33. 
Benners  v.  Clemens,  198. 
Bonnet  v.  Jenkins,  369. 
Bennett  v.  Bean,  373,  374,  377. 

V.  Buchan,  4. 

T.  Gibl)ous.  89,  207. 

V.  Lockwood,  66. 

V.  Smith,  211. 
Benson  v.  Maiden  &  Melrose  Gaslight 
Co.,  66. 


Benson  v.  Matsdorf,  353. 

V.  i'resident,    etc.,    of    A'illage    of 
Waukesha,  30. 

V.  Railroad  Co.,  80. 
Benton  v.  Fay,  61,  66,  75,  76. 

v.  Railroad  Co.,  328,  338. 
Benziger  v.  Miller,  59. 
Berger  v.  Gaslight  Co.,  362. 
Bergheim  v.  Steel  Co.,  135. 
Bergmann  v.  .lones,  208.  214. 
Berkey  «&  Gay  Furniture  Co.  v.  Has- 

call,  245. 
Berrinkatt  v.  Traphageu.  131. 
Berry  v.  Bakeman,  376,  377. 

V.  Da  Costa,  6,  373-375. 

V.  Dwinel,  179. 

V.  Fletcher.  295. 

V.  Harris,  8<). 

V.  Vantries,  215. 

V.  Wisdom,  140. 
Bertha  Zinc  Co.  v.  Black's  Adm'r,  304. 
Bertholf  v.  O'Reilly,  50. 
Beseman  v.  Pennsylvania  R.  Co.,  13. 
Besenecker  v.  Sale,  302. 
Betts  v.  Burch,  123. 
Beyersdorf  v.  Sump,  114. 
Beymer  v.  McBride,  GG. 
B.  F.  Myers  Tailoring  Co.  v.  Keeley, 

371. 
Bibb  V.  Freeman,  367. 
Bickell  V.  Coltou,  161,  184,  194. 
Bickford  v.  Page,  367. 

v.  Rich,  155,  168. 
Bicknall  v.  Waterman,  161. 
Bielman  v.  Railway  Co.,  361. 
Bierbach  v.  Rubber  Co.,  74. 
Bierbauer  v.  Railroad  Co.,  345. 
Bierhaus  v.  Telegraph  Co.,  286,  288. 
Biering  v.  Bank,  20G. 
Bigaouette  v.  Paulet.  100. 
Bigelow  v.  American  Forcite  Powder 
Manufg  Co.,  (17. 

V.  Doolittle,  164. 
Bigler  v.  Waller,  155. 
Bignall  v.  Gould.  140. 
Bigonj'  V.  Tyson,  135. 
Billman  v.  Railroad  Co.,  47. 
Billmeyer  v.  Wagner,  245. 
Binford  \.  Johnston,  .50. 

V.  Young,  207,  214.  rj^ 

Bingham  v.  Walla  Walla.  74.  ' 

V.  Weiderwax,  3G7. 


CASES  CITED. 


385 


[The  figiu-es  refer  to  pages.] 


Birchard  v.  Booth,  101),  212. 
Bird  V.  Railroad  Co.,  213. 

V.  Thompson,  102.  374. 
Birkett  v.  Ice  Co.,  323. 
Birney  v.  Telegraph  Co.,  291. 
Biscoe  V.  Raihva3'.  13. 
Bishop  V.  Heudricli,  87. 
Bispham  v.  Pallocli;,  148. 
Bissell  V.  Hopliins,  149,  164. 
Bixby  V.  Dunlap,  106,  206.  215. 
Black  V.  Baxendale,  257. 

V.  Railroad  Co.,  96,  1(56,  215. 

V.  Robinson,  186. 
Blackburn  v.  Mann,  376. 
Blackie  v.  Cooney,  164. 
Black  River  Lumber  Co.  v.  Warner, 

239. 
BlackweU  v.  Landreth,  112. 

v.  Railroad  Co.,  312. 
Blake  v.  Lord,  36. 

V.  Midland  Ry.  Co.,  301. 

V.  Railway  Co.,  299,  807. 
Blakeney  v.  Blakeney,  3. 
Blanchard  v.  Ely,  74. 
Blanchard's  Gun-Stock  Turning  Fac- 
tory V.  Warner,  88. 
Blaney  v.  Hendricks,  146,  147. 
Bledsoe  v.  Nixon,  174,  175. 
Blocker  v.  SchofE,  112. 
Blodgett  V.  Brattleboro,  210. 
Blofeld  V.  Payne,  30. 
Blount  V.  Garen,  353. 
Blum  Y.  Merchant,  186. 
Blumhardt  v.  Rohr,  99. 
Blunt  V.  McCormick,  81,  83,  86. 
Blydenburgh  v.  Welsh,  178. 
Blythe  v.  Denver  &  R.  G.  Ky.  Co..  42. 

V.  Tompkins.  91. 
Boardman  v.  Goldsmith,  212,  236. 
Board  of  Com'rs  Howard  Co.  v.  Legg. 

313. 
Board  of  Coni'rs  of  Rush  Co.  v.  Trees. 

358. 
Board   of   Internal   Improvement   for 

Shelby  Co.  v.  Scearce,  290. 
Board  of  Snp'rs  of  Clay  Co.  v.  Board 

of  Sup'rs  of  Chickasaw  Co.,  1.^4. 
Board    of    Sup'rs   of    Warren    Co.    v. 

Klein,  148,  154. 
Boddam  v.  Riley.  146. 
Bot'tclior  v.  Staples,  21G. 
Bogk  v.  Gassei-t,  112. 

I..\W  UAM.  — ^'5 


Bohm  V.  Dunphy,  208. 
Bohn  V.  Cleaver,  70,  252. 
Boliuger  v.  Railroad  Co.,  312,  313. 
Bolivar     Manuf'g     Co.     v.     Neponset 

Manuf'g  Co.,  26. 
Bolles  Wooden  Ware  Co.  v.  U.  S.,  358. 
BoUing  V.  Lersner,  353. 

V.  Tate,  89. 
Bond  V.  GreeuwaUl,  197. 
Bonesteel  v.  Bonosteel,  91. 
Borino  v.  Caledonio,  109. 
Bonnelli  v.  Bo  wen,  07. 
Boorman  v.  Nash,  238. 
Booth  V.  Ableman,  156. 

V.  Powers,  181. 

V.  Ratte,  361. 

V.  Rolling  Mill  Co.,  243. 

V.  Spuyten     Duyvil     Rolling-MlU 
Co.,  38,  57,  60,  62,  245,  246. 
Borchardt  v.  Boom  Co.,  49. 
Borders  v.  Barber,  170. 
Bordley  v.  Eden,  155. 
Borland  \.  Barrett,  208.  210.  213,  214, 

236. 
Borradaile  v.  Bruntou,  43,  61. 
Borries  v.  Hutchinson,  60,  246. 
Boston,  C.  &  M.  R.  v.  State,  300. 
Boston  Mauufg  Co.  v.  Fiske,  88. 
Boulard  v.  Calhoun,  217. 
Boulter  v.  Webster.  308,  348. 
Bourne  v.  Ashley.  185. 
Bovee  v.  Town  of  Danville,  47.  101. 
Bo  was  V.  Pioneer  Tow  Line.  36. 

V.  Tow  Line.  49. 
Bowden  v.  Bailos.  20S.  210,  214. 
Bowditch  V.  Boston,  14. 
Bowen  v.  Barksdale,  172. 

V.  Clark,  196. 

V.  Darby.  ]'.i7. 
Bower  v.  Hill.  .".i*. 
Bowler  v.  Lane.  211,  218. 
Bowles  V.  Railroad  Co.,  346. 
Bowman  v.  Xeely,  172,  174. 
Bowman  v.  Trail,  2,  116,  254, 
Bowyor  v.  Cook,  81. 
Boyd  V.  Bniwn,  72. 

V.   Fit  I.   48. 

V.  Gilchrist,  148. 

v.  Railroad  Co.,  341. 
Boyd's  Lessee  v.  Cowan,  353. 
Boylan  v.  HiigiKl.  185. 
Boyle  V.  Case.  96.  I(i5. 


386 


CASES   CITED. 


[The  figures  refei-  to  pages.] 


Boylston  lus.  Co.  v.  Davis,  195. 
Boynton  v.  Kellogg,  377.  37S. 
Bracket  v.  MoNair,  2;'31. 
Bradburn  v.  Railroad  Co.,  342. 
IJnulfortl  V.  Boley,  4G. 
Ili;i(llaugli  V.  Edwards,  91. 
Bradley  v.  Cramer,  72. 

V.  Denton.  ("(9. 

V.  Geiselman.  148,  1G4. 

V.  :Morris,  214. 

V.  Rea.  44.  247. 

V.  Sattler.  324. 
Bradshaw  v.  Buchanan.  212. 

V.  Craycnft.  134.  137. 

V.  Crosby,  371. 

V.  Railroad  Co..  2G1. 
Bradstreet  Co.  v.  Gill,  17. 
Brady  v.  Chicago.  302.  307. 

V.  Wilcnxson.  149.  1G2. 
Bramall  v.  Lees.  320. 
Brand  v.  Henderson.  238. 
Brandt  v.  Foster,  3GS. 
Brannon  v.  Hursell.  170. 
Brant  v.  Gallup.  20,  G4. 
Rrnnligam  v.  While,  96. 
Brasfiold  v.  Lee,  80. 
Brasher  v.  Davidson.  194. 

V.  lloltz.  180. 
Brass  v.  Worth.  190. 
Rrangliton  v.  Mitchell.  174. 
Bray  t.  Latham.  94. 
Brayton  v.  Chase.  38. 
Breckenfelder  v.   Railway  Co.,  315. 
Bredow  v.  Mutual  Sav.  Inst.,  181. 
Breen  v.  ^Moran,  247. 
Brennan  v    Clark.  13.3. 
Breon  v    Henkle,  100.  106. 
Brewer  v.  Hastie,  155. 
Brewster  v.  Edgerly.  125,  132,  140. 

V.  Van  Liew.  ISG.  194. 

V.  Wakefield,  1G9. 

v.  Warner,  119. 
Bridges  v.  Hyatt,  135. 

V.  Lanham,  75. 

T.  Reynolds,  197. 

Y.  Stickney.  .38. 
Bridgman  v.  The  Emily.  251. 
Briggs  V.  Milbuvn    215. 

V.  Morse,  31. 

V.  Railroad  Co..  118. 

V.  Winsmith,  1G9. 
Brigham  v.  Carlisle,  72. 


Brigham  v.  Evans,  3G4. 

V.  Vanbuskirk,  156. 
Bringard  v.  Stellwagen,  115. 
Brink  v.  FreotT,  227. 

V.  Railroad  Co..  .50. 
Brinker  v.  Leinkaull".  90. 
Briscoe  v.  McElweeu,  185. 
British    Columbia    &    Vancouver's    Is- 
land Spar  Lumber  &  Saw-Mill  Co.  v 
Neltleship,  02,  245,  253. 
Brizee  v.  Maybee,  164,  215. 
Broadway  Sav.  Bank  v.  Forbes,  170. 
Broadwell  v.  Paradice,  119. 
Brock  V.  Gale.  59. 
Brock  way  v.  Clark,  131. 
Broderick  v.  .James.  17. 
Bromage  v.  Prosser.  20. 
Brouson  v.  Coffin.  370. 

V.  Railway  Co..  232. 

V.  Rodes,  19G. 
Brooks  V.  Black,  368. 

V.  Hubbard.  199. 
Broquet  v.  Tripp.  43. 
Broughton  v.  McGrew,  108. 

V.  Mitchell,  149.  153. 
Brower  v.  Merrill,  116. 
Brown  v.  Allen.  209.  211.  360. 

V.  Baldwin,  3.54. 

V.  Bi-llows.  130,  139. 

V.  Bnwen,  118. 

V.  Calumet  R.  Ry.  Co.,  179. 

V.  Carroll,  120. 

V.  Chicago.  M.  &  St.  P.  Ry.  Co.,  36, 
37.  50. 

V.  Cummings.  47. 

V.  Durliam.    17. 

V.  Evans.  207,  211,  210. 

V.  Foster,  .38.  76. 

V.  Hadley.  76. 

V.  Hardrastle,  169. 

V.  Hiatts.  155. 

V.  Howard.  14. 

V.  .Tones.  89. 

V.  Kendall,  22. 

V.  Maulsby.  141. 

V.  :\Iuller,  24:i 

V.  Railroad    Co..   37,   50,    164,   180, 
225.  259.  312. 

V.  Sharkey,  24:',. 

V.  Smith.  73. 

V.  Steamship  Co.,  254. 

V.  Sullivan,  95. 


CASES   CITED. 


387 


[The  figures  refer  to  pages.] 


Brown  v.  Swineford,  lOU,  203,  205,  212, 
216. 

V.   Watson,  26,  362. 
Browne  v.  Steck.  171. 
Brownell  v.  Chapman,  59. 
Brownson  v.  Walhice,  222. 
Bruce  v.  Pettengill,  26.  224. 
Brunsden  y.  Humphrey.  11,  21. 
Brunswig  v.  White,  308,  319,  323. 
Bryan  v.  Acec,  236. 
Bryant  T.  Jackson,  17. 
Bryton  v.  Marston,  132,  139. 
Buck  V.  Ramsen.  119. 
Buckingham  \ .  Orr,  171. 
Buckley  v.  Knapp.  208.  211,  214. 
Bucklin  v.  Beals,  115. 
Budd  V.  Crea,  377.  378. 

V.  Walker,  355. 
Buddington  v.  Smith.  14. 
Buffalo  &  H.  Turnpike  Co.  t.  City  of 

Buffalo,  164,  165. 
Billiard  v.  Harrison,  15. 

V.  Stone,  179. 
Bullock  V.  Ferguson,  155. 
Bunily  V.  Maginness,  207,  214,  216. 
Bunny  v.  Hopkinson,  369. 
Bunyea  v.  Railroad  Co.,  309. 
Bui  diet  V.  Railway  Co.,  235. 
Bunlitt  V.  Railroad  Co.,  357. 
Burgess,  In  re.  147. 
Burk  V.  Dunn,  134. 

V.  Serrill,  365. 
Burke  v.  Mel v  in,  109. 

V.  Railroad  Co..  320. 
Burkett  v.  Lanata,  236. 
Burks  V.  Hubhard,  194. 

V.  Sliain.  374. 
Burnap  v.  Wight,  26,  47. 
Burnett  v.  Simpkins,  374,  377,  878. 

V.  Telegraph  Co.,  99. 
Burnhisi'l  v.  Firman,  169. 
Burns  v.  Anderson,  169. 

V.  Campbell,  217. 
Burr  V.  Burr.  202. 

V.  Todd.  130. 
Burragf  v.  Crump.  131. 

V.  Melson,  227. 
Burrell  v.  New  York  &  S.  S.  Salt  Co., 
:'..s. 

V.  Salt  Co..  227. 
Burroughs  v    Commissioners,  173. 
Burrows  v.  Marcli  C.is  &.  Col<e  Co.,  45. 


Burrows  v.  Stiyker,  174. 
Burt  V.  Burt,  119. 

V.  Dutclier,  191. 

V.  Newspaper  Co.,  112. 
Burton  v.  McClellan,  14. 

V.  Pinkcrton,  47. 

V.  Railroad  Co.,  312. 
Burtraw  v.  Clark,  359. 
Bussy  V.  Donaldson,  24.  33. 
Bustamente  v.  Stewart,  31,  90. 
Butler  V.  Butler.  239. 

V.  Eschleman.  378. 

V.   Horwitz.  106. 

V.   Kirby.  153. 

V.  McLellan,  14. 

V.  Mthrliug,  215. 

V.  Mercer,  216. 

V.  ^loore.  75.  240. 

V.  New  York  &  !■:.  R.  Co..  3. 

V.  Railroad  Co.,  51. 
Button  V.  MeCauley,  376,  378. 
Buxton  V.  Lister,  189. 
Buzzell  V.  Snell,  153. 
Byram  v.  McGuire,  211. 
Byrd  v.  Corner,  315. 
Byrne  v.  Gardner,  97. 

V.  Railway  Co..  359. 
Byrom  v.  Chnpin,  120. 


c 


C.ibell  V.  Arnold.  110. 

Cable  V.  Da  kin.  215. 

Cade  V.  Br:)wn.  :>64. 

Cadle  V.  Railroad  Co.,  S3. 

Cahen  v.  Piatt,  242.  243. 

Cahill  v.  Pintony,  221. 

Cahn  V.  Telegraph  Co.,  278.  285. 

Cairncross  v.  A'illage  of  Pewaukee,  22. 

Calcutta    &    Steam    Nav.    Co.    v.    De 

Mattos,  240. 
Caldwell  v.  Brown.  .".10,  326. 

V.  Dunklin,  153. 

V.   Railroad  Co.,  233. 

V.  Steanii)oat  Co.,  211. 
Calhoun  v.  .Marshall,  174. 
California  Steam  Nav.  Co.  v.  Wright. 

135. 
Call  V.  i5ultri(  k.  ;'.i;2. 

V.  Ha  gar.  00. 
Callahan  v.  Ingram.  110. 


388 


CASES  CITED. 


[Thp  Oi^ures  refer  to  pa,?es.] 


Callanan  v.  Brown,  ISl. 

Callaway    Min.    &    Manuf'g    Co.     v. 

Clark.  73. 
Calumet  Iron  &  Steel   Co.  v.  Martin, 

221. 
Camden     Consolidated     Oil     Co.     v. 

Schlens,  242. 
Cameron  v.  Boyle,  221. 

V,  Smith,  147. 
Camp  T.  Bates,  172. 

V.  Camp,  208,  215. 

V.  Hamlin,  239. 

V.  Telegraph  Co.,  292. 

V.  Whitman,  15. 
Campbell  v.  Brown,  353,  354. 

V.  Car  Co.,  100,  106. 

V.  City  of  Stillwater,  50. 

V.  Pullman  Palace-Car  Co.,  37. 

V.  Race.  14,  15. 

V.  Shields.  131. 
Canadian   Pac.    Ry.    Co.    v.   Robinson, 

303. 
Candee  v.  Webster,  155. 

V.  Telegraph  Co.,  49,  59,  290. 
Canfield  v.  Railroad  Co.,  213,  214,  21S. 
Canning  v.    Inhabitants  of  Williams- 
town,  10,  94. 
Cannon  v.  Folsom,  194. 

V.  Telegraph  Co.,  59,  279,  292. 
Canter  v.  American  Ins.  Co.,  8S. 
Capen  v.  Crowell,  172. 
Capital,  etc.,  Bank  v.  Henty,  20. 
Carey  v.  Day,  307. 

V.  Railroad  Co.,  298. 
Carhart  v.  Auouru  Gas  Light  Co.,  29. 
Carl  v.  Coal  Co.,  224. 

V.  Granger  Coal  Co.,  2(;. 
Carlisle  v.  Callahan,  44,  235. 
Carlson  v.  Railway  Co.,  304. 
Carlyon  v.  Lannan,  1S5,  222. 
Garner  v.  Railway  Co.,  358. 
Carpenter  v.  Barber,  211. 

V.  Dresser,  114,  115. 

V.  Eastern  Transp.  Co.,  118. 

T.  First  Nat.  Bank,  60. 

V.  Insurance  Co.,  115. 

V.  Railroad  Co.,  95.  105.  323. 

V.  Welch.  173. 
CarroU  v.  Railway  Co.,  13.  342. 
Carroll-Porter   Bi)iler   &   Tank   Co.    v. 

Columbus  Mach.  Co.,  244. 
Carsten  v.  Railroad  Co..  97,  106.  263. 


Carter  v.  Corlcy,  131. 

V.  Pitcher,  358. 

V.  Walla  .-e,  11. 
Cartwright  v.  Gardner,  142. 
Carver  v.  Telegraph  Co.,  275. 
Gary  v.  Courteney.  198. 
Case  V.  Fish,  172. 

V.  Stevens,  59,  249. 

V.  Wolcott.  364. 
Case  Threshing  Mach.  Co.  v.  Haven, 

249. 
Caspar  v.   Prosdime,  109. 
Cassell  v.  Hays,  229. 
Cassidy  v.  LeFevre,  75.  244. 
Casteel  v.  Walker,  171. 
Castello  V.  Landwehr,  312,  335. 
Caswell  V.  Howard,  119. 
Catawissa   R.  Co.  v.  Armstrong,  312,. 

335,  344. 
Gates  V.  McKinney,  374. 
Gatlin  v.  Lyman,  174. 

V.  Pond,  98. 
Cattle  V.  Stockton  Waterworks  Co.,  20.. 
Cavanagh  v.  Durgin,  359. 
Cease  v.  Cockle,  161. 
Cecil  V.  Hicks,  170. 
Center  v    Finney.  22. 
Central  Branch  U.  P.  R.  Co.  v.  Nich- 
ols, 177. 
Central  Pass  R.  Co.  v.  Chatterson.  218. 
Central  R.  Co.  v.  Crosby,  340,  347. 

V.  Moore,  338. 

V.  Rouse,  338. 

V.  Sears,  166,  341. 

V.  Serfass,  95. 

V.  Thompson.  340. 
Central  Railroad  &  Banking  Co.  v.  At- 
lantic &  G.  R.  Co.,  156. 

V.  Lanier,  225. 

V.  Murray,  358. 
Central  Trust  Co.  v.  Arctic  Ice  Mach_ 

Manuf'g  Co.,  247. 
Chaffee's  Appeal,  186. 
Chalie  v.  Duke  of  York,  146. 
Chalk  V.  Railroad  Co.,  49. 
Chamberlain  v.  Bagley,  134. 

V.  City  of  Oshkosh,  46. 

V.  Collinson,  358. 

V.  Parker,  26. 

V.  Worrell.  186. 
Chambers  v.  Fi-azior,  30. 

V.  Goldwiu,  172. 


CASES  CITED. 


o8y 


[The  figures  refer  to  pages.] 


■Champion  v.  Vincent,  27. 
Chandler  v.  Aqueduct  Corp.,  167. 
Chant  V.  Railway  Co..  317,  318. 
Chapin  v.  Murphy,  Hid. 
Chapman  v.  Copeland,  27. 
v.  Ingram,  2oS. 
V.  Kirby,  182. 
V.  Railway  Co.,  1G5,  253. 
V.  Rothwell.  320,  348. 
V.  Telegraph  Co.,  100.  104,  281. 
V.  Thames  Manuf 'g  Co.,  20,  29. 
Charlevois  v.  Railroad  Co.,  348. 
Charman,  Ex  parte,  147. 
Chase  v.  Allen,  139,  141. 
V.  Bennett,  91. 
V.  Railroad  Co.,  09. 
V.  Telegraph  Co.,  104. 
V.  Whitlock,  18. 
Chasemore  v.  Richards,  14. 
Chaude  v.  Shepard,  138. 
Chauncy  v.  Yeaton,  103. 
Cheddick's  Ex'r  v.  Marsh,  136,  139. 
Cheek  v.  Waldrenn,  153. 
Chellis  V.  Chapman,  0,  213,  373,  378, 

379. 
Cherokee   «fe   P.   Coal   &   Min.   Co.   v. 

Limb,  330. 
Cherry  v.  McCall.  216. 
Cherry  Valley  Iron  Works  v.  Florence 

Iron  R.  Co.,  238. 
Chesapeake  Bank  v.  Swain,  197. 
Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Hen- 
dricks, 308. 
Cheshire  Turnpike  v.  Stevens,  81. 
Chcsley  v.  Chesley,  102. 
V.  Tompson,  99,  106. 
Chesterfield  v.  .Jansen,  145. 
Chevoley  v.  Morris,  221. 
Chicago  V.  Greer,  238. 
T.  Keefe,  319. 
V.  McCulIoch,  339. 
Chicago,  B.  &  Q.  R.  Co.  v.  Hale,  254. 
T.  Harwood,  344. 
V.  nines,  100. 
V.  Sykes,  344. 
Chicago  City  Ry.  Co.  v.  Gillam,  302. 

V.  Henry,  72. 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Dowd, 

344. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Austin, 
311,  310,  344. 
V.  Carey,  09. 


Chicago,  R.  1.  &  P.  R.  Co.  v.  Caulfield, 
100. 
V.  Henry,  338. 
Chicago,    St.    L.   &   N.    O,    R.   Co.    v. 
Pounds,  2,  300,  307. 
V.  Scuir,  212,  213,  235,  236. 
Chicago,  St.  L.  &  P.  R.  Co.  v.  Hold- 
ridge,  97. 
Chicago,  W.  D.  R.  Co.  v.  Klauber,  220. 
Chicago  &  A.  R.  Co.  v.  Adler,  332. 
V.  Becker,  324,  344. 
V.  Carey,  350. 

V.  Flagg    34,  92,  98,  106,  261,  263. 
V.  May,  311. 
V.  Bobbins,  358. 
V.  Shannon,  332,  344,  348. 
V.  Wilson,  71. 
Chicago  &  E.  I.  R.  Co.  v.  Conley,  98. 

V.  Loeb,  82,  83. 
Chicago  &  E.  R.  Co.  v.  Barnes,  359. 

V.  Holland,  91. 
Chicago,  &  I.  R.  Co.  v.  Baker,  215,  228. 
Chicago  &  N.  W.   R.  Co.  v.  Bayfield, 
325,  338. 
V.  Chisholm,  97,  106,  263. 
V.  Dickinson,  2.52. 
V.  Howard,  338. 
V.  Moranda,  338. 
V.  Peacock,  231. 
V.  Sehultz,  148,  165. 
V.  Stanbro,  254. 
V.  Swett,  331,  344,  348. 
V.  Whitton,  317,  343. 
V.  Williams,  97,  98,  106,  263. 
Chick  V.  Railroad  Co.,  298. 
Childers  v.  Publishing  Co.,  214. 
Childress  v.  Yourie.  50. 
Cliiles  V.  Drake,  216,  305. 
Chilliuer  v.  Chilliner,  142. 
Cliinery  v.  Viall,  246,  247. 
Cliisholm  V.  Arrington,  197. 
Christ   Church   Hosi)il;U    v.    Fucchsel, 

197. 
Christian  v   Railway  Co.,  312. 
Christlanson  v.  Linford,  2. 
Chrysler  v.  Renois,  197. 
Cluircher  v.  Stringer.  150. 
Cliurchill  V.  Water  Co.,  362. 
Cincinnati.   II.  &;  I.  R.  Co.  v.   Eaton, 

259. 
Cincinnati,    I.   St.   L..   &   G.   li.  Co.  v. 
Cooper,  37. 


5U0 


CASES  CITED. 


[Tho  figures  refer  to  pasos.] 


Citizens'  St   Ry.  Co.  v.  Steou,  207,  211, 

218. 
City  Nat.  Banlj:  v.  Jeffries,  97,  211,  219. 
City  of  Allesrbeny  v.  Campbell,  1U4. 
City  01  Atchison  v.  King,  4G. 
City  of  Bloomingtoii  v.  Cliniiiborlain, 

71. 
City  of  Chicago  v.  Allcock,  148. 

V.  Elzoman,  71,  01. 

V.  Hesiug,  323,  324. 

V    liucnerbeiu,  74,  301. 

V.  Jones,  71,  91. 

V.  Langlass,  71,  91. 

V.  Leseth,  232. 

V.  McLean,  9.1.  101. 

V.  Major,  302,  323. 

V.  Martin,  212. 

V.  People,  154. 

V.  Powers.  339. 

V.  Scholten,  302,  323,  324,  344,  348. 

V.  Tebbetts,  148. 
City  of  Cincinnati  v.  Evans,  74. 

V.  Steadman,  SS. 
City  of  Delphi  v.  Lowery,  338. 
City  of  Eufaula  v.  Suumous,  S3. 
City  of  Enreka  v.  :Merrifielcl,  298. 
City  of  Galesburg  v.  Higley,  231. 
City  of  Indianapolis  v.  Gaston,  71. 
City  of  Indianola  v.  Gulf,  W.  T.  &  P. 

Ry.,  142. 
City  of  Jeffersonville  v.  Patterson,  173. 
City  of  Joliet  v.  Conway,  71. 

V.  Weston,  324. 
City  of  Kansas  City  v.  Manning,  232. 
City  of  Lincoln  v.  Smith,  4G. 
City  of  Logansport  v.  Justice,  71. 
City  of  Montreal  v.  Labelle,  303. 
City  of  North  Vernon  v.  Voegler,  83. 
City  of  Ottawa  v.  Sweely,  231. 
City  of  Pekin  v.  Reynolds,  154. 
City  of  Salem  v.  Harvey,  324,  332. 
City  of  Salina  v.  Trosper,  93,  95. 
City  of  San  Antonio  v.  Lane,  173. 
City  of  Toledo  v.  Goulden,  88. 
City  of  Vicksburg  v.  McLain,  325,  343. 
City  of  Wabash  v.  Carver.  338. 
Clapp  V.  Railway  Co.,  313. 
Claridge  v.  Tramway  Co.,  119. 
Clark  V.  Bales,  207. 

V.  Barnard,  130. 

V.  Boyreau,  355. 

V.  Chambers,  38,  50. 


Clark  V.  Dales,  IGl. 

V.  Duttou,  l.")3. 

V.  Famous  Shoe  &  Clothing  Co.,  15- 

V.  Fisher,  371, 

V.  Fitch,  100. 

V.  Iluber,  121. 

V.  Iowa  City,  173. 

V.  Kay,  141. 

V.  Marsiglia.  (iS. 

V.  Moore,  02. 

V.  Mumford,   90. 

V.  Newsam,  209. 

V.  Pinney,  242. 

V.  Whitaker,  103,  185. 

V.  Zoigler,  370. 
Clarke  v.  Meigs,  2. 
Cleary  v.  Railroad  Co.,  303. 
Clcgg  V.  Dearden,  81. 
Cleghorn  v.  Railroad  Co.,  218. 
Clem  V.  Holiufcs,  100. 
Clement  v.  Cash,  125,  13G,  139,  140. 

V.  Spear,  1()(). 
Clements  v.  Railroad  Co.,  135. 
Cleveland  v.  Sterrett,  241. 
Cleveland  &  P.  R.  Co.  v.  Rowan,  302, 

308. 
Clifton  V.  Hooper,  31. 
Clinton  v.  Laning,  97. 
Clissold  V.  Machell,  214. 
Close  V.  Fields,  148,  149. 
Coates  V.  Railroad  Co.,  339. 
Cobb  V.  Inhabitants  of  Slandish,  47. 

V.  People,  213. 

V.  Railroad  Co.,   60,  Gl,  257. 

V.  Smith,  80.  S3. 
Coburn  v.  Litchfield.  371. 
Cochran  v.  Miller,  211. 
Cochrane  v.  Quackenbush,  43. 

V.  Tuttle,  211,  228. 
Cockburn  v.  Ashland  Lumber  Co.,  179; 

242,  24G. 
Cockrell  v.  Proctor,  3G7. 
Codman  v    Evans.  3G2. 
Coffin  V.  Varila,  98. 
Cogdell  V.  Yett.  36. 
Coggs  V.  Bernard,  9. 
Cogswell  V.  Railroad  Co.,  13,  232. 
Cogswell's  Heirs  v.  Lyon,  156. 
Cohen  v.   Railroad  Co.,   167. 
Cohn  V.  Norton,  38,  3G5. 
Coll  V.  Wallace.  374.  379. 
Cole  V.  Iloeburg,  222,  223. 


CASES   CITED. 


591 


[Tlie  figures  x*efer  to  pages.] 


Cole  T.  Ross,  ISo,  19S. 

V.  Tucker,  21G. 
Coleman  v.  Allen,  98,  207,  214. 

V.  Ballard's  Heirs,  369. 

V.  New  York  cV:  N.  H.  R.  Co.,  37. 
Coles  V.  Kelsey,  15G. 
Collard  v.  Railroad  Co.,  38,  56,  255. 
Collier  v.  Betterton,  135. 
Collins  V.  City  of  Council  Bluffs,  213, 
235,  236 

V.  Davidson,  302. 

V.  Delaporte,  238. 

V.  Dodge,  71. 

V.  Mack,  102. 

V.  Railroad  Co.,  307. 

V.  Stephens.  38. 
Colorado  Coal  «&  Iron  Co.  v.  Lamb,  330. 
Colorado  Consolidated  Land  &  Water 

Co.  V.  Hartman,  359. 
Colt  V.  Owens,  192. 
Colton  V.  Du.iham,  197. 
Columbus,  H.  V.  &  T.  R.  Co.  v.  Gard- 
ner, 362. 
Colwell  V.  Lawrence,  135. 
Combs  V.  Scott,  364. 
Comer  v.  Knowles,  110. 

V.  Taylor,  100. 
Commerce,  The,  231. 
Commercial   &   Agricultural   Bank   v. 

Jones,  164,  186. 
Com.  V.  Boston  &  M.  R.  Co..  157. 

V.  State  of  Maryland,  173. 
Compta,  The,  254,  255. 
Conant  v.  Griffin,  302.  344. 
Condon  v.  Kemper,  129. 

V.  Railway  Co.,  320. 
Congdon  v.  Scale  Co.,  118. 
Conger  v.  Weaver,  3(!5. 
Conn  V.  Peun,  155. 
Connecticut    Mut.     Life    Ins.    Co.    v. 
Cleveland,  C.  &  C.  R.  Co.,  173. 

V.  New  York  &  N.  H.  R.  Co.,  298, 
299. 
Connell  v.  Telegraph  Co.,  92,  95,  104. 
Connelly  v.  McNeil,  231. 
Connoss  v.  Meir,  222. 
Conor  v.  Hillier,  181. 
Conroy  v.  Flint,  116. 

V.  Pittsburgh  Times,  113. 
Consequa  v.  Fanning,  150. 
Consolidated  Coal  Co.  of  St.  Louis  v. 
Block  &  Hartman  Smelting  Co.,  244. 


Consolidated   Home   Supply   Ditch   & 

Reservoir  Co.  v.  Hamliu,  361. 
Cook  V.  Braudeis,  241. 

V.  Ellis,  202,  214,  216. 

V.  Finch,  140. 

V.  Fowler,  147,  169,  170. 

V.  Garza,  215. 

V.  Hull,  26. 

V.  Loomis,  185. 

V.  Railroad  Co.,  303,  341. 
Cooke  V.  Barr,  31. 

V.  England,  SO,  83. 
Coolidge  V.  Neat,  373-375. 
Coon  V.  JNIoftitt,  100. 
Cooper  V.  Hart,  20. 

V.  MuUins,  95. 

V.  Railway  Co.,  325,  326,  339. 

V.  Randall,  83,  118. 
Coover  v.  Moore,  306. 
Copeland  v.  Cunningham.  90. 
Coppin  V.  Braithwaite,  97. 
Corcoran  v.  Harrau,  96,  109,  216,  235. 

V.  Judson,  89. 
Corley  v.  Lancaster,  19. 
Cornell  v.  Jackson,  367. 
Corning  v.  Corning,  222. 
Cornwall  v.  Mills,  341. 
Corrigan  v.  Delaware  B'alls  Co.,  174. 
Corsair,  The,  298. 
Cort  V.  Ambergate  N.  &  B.  E.  J.  Ry. 

Co.,  239. 
Cortelyou  v.  Lansing,  190. 
Corwin  v.  Walton,  216. 
Cory  V.  Sileox,  17,  27. 

V.  Thames    Iron    Works    »&    Ship 
Bldg.  Co.,  57,  62.  245. 
Coryell  v.  Colbaugh,  6,  213,  374,  379. 
Costigan  v   Railroad  Co.,  67. 
Cotheal  v.  Talmage,  136,  137,  140. 
Cothran  v.  Hanover  Nat.  Bank,  181. 

v.  Telegraph  Co.,  276. 
Cotter  V.  Flumer,  358. 
Coulter  v.  Pine  Tp.,  342. 
Courtois  V.  Carpentier,  151. 
Courtoy  v.  Dozicr,  101. 
Cowley  V.  Davidson,  164,  224. 
Cox  V.  Crumley,  208,  215. 

V.  Henry,  368. 

V.  Long,  247. 

V.  McLoughlin,  162. 

V.  Vanderklced,  96,  10.5. 
Crabb's  Exrs  v.  Bank,  222. 


392 


CASES   CITED. 


['riu>  figiu-es  i-ofc'l-  to  piisos.] 


Crais  v.  Cook.  215,  235,  3G0. 

V.  Mclleury,  119. 
Grain  v.  Beach,  79. 
Craker  v.   Railway  Co.,  9G,  lOG,  204, 

2120. 
Cram  v.  Bailoy,  120. 

V.  Hadley,  231. 
Cramei'  v.  Lepper,  174. 
Crampton  v.  Yalido  Marble  Co.,  ISG. 
Crane  v.  Peer,  142. 
Crane  Elevator  Co.  v.  Lippert,  3S. 
Crater  v.  Binninger,  43. 
Crawford  v.  Andrews,  28. 

V.  Bergen,  30. 

V.  Siuiouton's  Ex'rs,  15G. 
Crawson  v.  Telegraph  Co.,  104. 
Crisdee  v.  Bolton,  125. 
Crogan  v.  Schiele,  22S. 
Croker  v.  Railway  Co.,  203. 
Cromwell  v.  County  of  Sac,  1G9. 
Crone  v.  Dawson,  150. 
Cropper  v.  Nelson,  19S. 
Crosby  v.  Humphreys,  109,  214, 
Crosier  v.  Craig,  373. 
Cross  V.  Guthery,  298. 
Crouch  V.  Railway  Co.,  252. 
Crow  V.  State,  149. 
Cruikshauk  v.  Gordon,  110. 
Crumb  v.  Oaks,  185. 
Crux  V.  Aldrcd,  135. 
Culin  \.  Woodbiu-y  Glass  Works,  244. 
Cumberland  Coal  »&  Iron  Co.  v.  Tilgh- 

man,  119. 
Cumberland   Telephone   &   Telegraph 
Co.  V.  Postou,  215. 

V.  United  Electric  Ry.  Co.,  22. 
Cumberland  &  O.  C.  Corp.  v.   Hitch- 

ings,  81,  361. 
Cummings  v.  Burleson,  89. 

V.  Dudley,  199. 

V.  Howard,  1G9. 
Curd  v.  Letcher,  155. 
Currie  v.  White,  IGl. 
Currier  v.  Davis,  197. 

V.  Swan,  107,  211. 
Curry  v.  Larer.  139. 
Curtis  V.  Brewer,  135. 

V.  Innerarity,  153. 

V.  Railroad  Co.,  95,  OS,  225. 
Curtiss  V.  Hoyt,  215. 
V.  Lawrence,  221. 


Cushing  V.  Drew,  135,  130. 

V.  Seymo-ir.  Sabin  &  Co.,  76. 

V.  Wells,  197. 
Cushman  v.  Hayes,  194. 

V.  Ryan,  14. 
Custis  V.  Adkins,  153. 
Cutler  V.  James  Goold  Co.,  185. 

V.  Smith,  210,  213,  215,  23G,  3G0. 
Cutter  V.  Mayor,  etc.,  of  New  York, 
150. 

V.  Waddlngham,  120. 
Cutting  V.  Railway  Co.,  5,  255. 

V.  Seabury,  298. 
Cutts  V.  Telegraph  Co.,  277. 


D. 


Dagcnham  (Thames)  Deck  Co.,  In  re, 

138. 
Daggett  V.  Pratt,  141. 

V.  Wallace,  103,  374. 
Dahill  V.  Booker,  120. 
Dailey  v.  Canal  Co.,  80. 

V.  Crowley,  116. 

V.  Green,  247. 
Daily  v.  Litchfield,  139. 
Dakin  v.  Williams,  134,  136. 
Dallam  v.  Filler,  114. 
Dallas  &  W.  Ry.  Co  v.  Splcker,  314. 
Dalton  V.  Beers,  207,  211,  214. 

V.  Bowker,  90. 

V.  Railway  Co.,  308,  328. 
Daly  V.  Van  Benthuyseu,  214. 
Damron  v.  Roach,  360. 
Dan  V.  Chubb,  355. 
Dana  v.  Fiedler,  149,  159,  IGl,  239,  242. 
Danforth  v.  Walker,  238. 

V.  Williams.  15(). 
Daniel  v.  Holland,  186. 

V.  New  York  News  Pub.  Co.,  17. 

V.  W.  U.  Tel.  Co.,  59,  292. 
Daniell  v.  Sinclair,  172. 
Daniels  v.  Ballantine,  49. 

V.  Brown,  120. 

V.  Ward,  169,  171. 

V.  Wilson,  144. 
Danziger  v.  Boyd,  355. 
Darley  Main  Colliery  Co.  v.  Mitchell, 

79. 
Dart  V.  Laimbeer,  75. 


CASES   CITED. 


393 


[The  figures  refer  tc  pages.] 


Dasli  V.  "Van  Kleeck,  2. 

Daugbtery    v.    American    Union    Tel. 

Co.,  38,  55.  59,  292,  294. 
Davenport  v  Bradley,  221. 

V.  Wells,  19S. 
David  V.  Conard.  221. 
Davidson  v.  GunboUy,  119. 

V.  Southern  Pac.  Co.,  95. 
Davis  V.  Doe,  352 

V.  Fairclougb.  ISG. 

V.  Fish,  65. 

V.  Freeman,  132,  141. 

V.  Greely.  148,  150. 

V.  Guarnieri,  343. 

V.  Hendrie.  172. 

V.  Inhabitants  of  Dudley,  47. 

V.  Kendall,  25. 

V.  Logan,  35G. 

V.  Marxhausen,  111. 

V.  Railroad  Co.,  75,  257. 

V.  Rider,  171. 

V.  Seeley,  225. 

V.  Slagle,  375. 

V.  Smith.  173. 

V.  Talcott,  Gl. 

V.  U.  S..  125. 

V.  Yuba  Co.,  144. 
Day  V.  Brownrigg,  8. 

V.  Holland,   208. 

V.  Pool,  247. 

V.  Railroad  Co.,  1G2. 

V.  Woodworth,  6,  89,  200.  202,  207, 
295. 
Dayton  v.  Hooglund,  247. 
Deal  V.  D.  M.  Osborne  &  Co.,  120. 
Dean  v.  Blackwell,  6. 

V.  Railway  Co.,  165. 
Deane  v.  O'Brien,  222. 
De  Bernales  v.  Fuller,  14G. 
De  Briar  v.  Minturn,  228. 
Decker  v.  Mathews.  181. 
)eck's  Adm'r  v.  Feld,  iSl. 
De  Clerq  v.  Mungin,  189. 
De  Costa  v.  Mas.sachusetts  Flat  Water 

«S:  Mining  Co.,  72. 
De  Graff,  Vrieling  &  Co.  v.  Wickham, 

135. 
De   Groff  v.   American   Linen-Thread 

Co.,  134. 
De  Havillnnd  v.  Bowerbank,  14G,  147. 
Deisen  v.  Rnilway  Co..  340. 
Deitzler  v.  Wilhito,  354. 


Delano  v.  Curtis.  117. 
Delany's  Adm'rs  v.  Hill,  181. 
De  Lavallette  v.  Wendt,  149. 
Delaware,  L.  &.  W.  R.  Co.  v.  Burson, 
167. 

V.  Jones,  317,  318. 
Delaware  &  H.  Canal  Co.  v.  Torrey, 

26,  29. 
Delaware  &  R.  Canal  Co,  v.  Wright, 

83. 
Dellone  v.  Hull,  240. 
Demann  v.  Railroad  Co.,  60,  95,  256. 
Demarest  v.  Little,  329,  334,  337,  347. 
De  May  v.  Roberts,  97. 
Dennis  v.  Barber,  185,  215. 

V,  Cummins,  134,  137. 

V.  Maxfield,  75. 

V.  Stoughton,  47. 
Denniston  v.  Imbrie,  155,  173. 
Denny  v.  New  York  Cent.  R.  Co.,  44. 
Denslow  v.  Van  Horn,  6,  376-378. 
Densmore  v.  Mathews,  120. 
Dent  V.  Davidson,  26. 

V.  Dunn,  147. 
Denver  Brick  &  Manuf'g  Co.  v.  Mc- 
Allister, 174. 
Denver  City  Irrigation  &  Water  Co.  v. 

Middaugh,  80. 
Denver,  S.  P.  &  P.  R.  Co.  v.  Conway, 
148. 

V.  Frame,  183. 

V.  Woodward,  300. 
Denver  &  R.  G.  Ry.  Co.  v.  Harris,  207. 
Derrick  v.  .Tones,  221. 
Derry  v.  Flitner,  43. 
De  Rutte  v.  Telegraph  Co.,  264-260. 
De  Steiger  v.  Railroad  Co.,  148,  164. 
Detroit  Daily  Post  Co.  v.   McArthur, 

99,  106. 
Devaughn  v.  Heath,  214,  236. 
Devendorf  v.  Wert,  29. 
Devereux  v.  Burgwin,  149. 
Deverill  v.  Burnell,  142. 
Devine  v.  Edwards,  148. 

v.  Lewis,  36S. 
Devlin  v.  City  of  New  York,  150. 

v.  :Mayor,  etc.,  57,  245. 
Dewint  v.  Wiltse,  61. 
De  Witt  V.  Morris,  116. 
Do.xter  v.  Spear,  33. 
Deyo  V.  Van  Vall<oiil)urgh,  27. 

V.  Waggoner,  43. 


394 


CASES   CITED. 


[riie  figui-es  refoi"  to  p:i.i.'os.l 


Dibble  v.  ^[orl•is.  210. 
Dibliu  V.  Muipliy,  '2oo. 
Dickens  v.  Knilroad  Co.,  345,  349. 
Dickinson  v.  Barber,  17. 
Dickson  v.  Surginor,  148. 
Digges  V.  Norris,  222, 
Dike  V.  Greene,  142. 
Dillahimty  v.  Railway  Co.,  371. 
Dilleuback  v.  Jerome,  185. 
Dillon  V.  Hunt,  118. 
Dimick  v.  Campbell,  222. 
Dimmey  v.  Railroad  Co.,  31G,  343. 
Dimmick  v.  Lockwood,  370. 
Dingle  v.  Hare,  249. 
Dirmeyer  v.  O'Hern,  lOG. 
Dixon  V.  Caldwell,  185. 

V.  Clow,  11,  20. 

V.  Parkes,  150. 
Doane  v.  Dunliam,  247. 

V.  Railway  Co.,  129. 
Dobbins  v.  Duquid,  61,  371. 

V.  Higgins,  153. 
Dobenspeck  v.  Ormel,  101. 
Dodds  V.  Hakes,  74. 
Dodge  V.  Essex  Co.,  13. 

V.  Perkins,  151. 
Dodson  V.  Cooper,  117,  166. 
Doe  V.  Davis,  355. 

V.  Filliter,  201,  355. 

T.  Hare,  354. 

V.  Huddart,  355. 

V.  Perkins,  355.  , 

V.  Vallejo,  174. 

V.  Warren,  172,  174. 
Doellner  v.  Tynan,  14. 
Doig  V.  Barkley,  174, 
Dole  V.  Insurance  Co.,  35. 

V.  Lyon,  112. 
Donaboe  v.  Emery,  371. 

V.  Wabash,  St.  L.  &  P.  Ry.  Co.,  15. 
Donaldson  v.  Railroad  Co.,  304,  307, 

339. 
Donnell  v.  .Tones,  43,  214,  226. 
Donner  v.  Redenbaugh,  365. 
Donoghue  v.  Hayes,  17. 
Dooley  v.  Smith,  195. 

V.  Watson,  142. 
Doremus  v.  Howard,  240. 
Doremus*  Estate,  In  re,  150. 
Dorgan  v.  Telegraph  Co.,  283 
Dority  v.  Dunning,  81. 
Dcrman  v.  Railroad  Co.,  302. 


Dorrah  v.  Railroad  Co.,  98,  214. 
Dorscy  v.  Moore,  lis. 
Dothage  v.  Stuart,  354. 
Dotterer  v.  Bennett,  149. 
Doubet  V.  Kirkmau,  378. 
Dougherty  v.  Miller,  150. 
Doughtery  v.  Telegraph  Co.,  269, 
Douglas  V.  Gausmau,  373,  374. 
Douglass  V.  Kraft,  185. 
Dow  V.  Humbert,  115. 

V.  Julien,  209. 
Dowell  V.  Griswold,  157. 
Downer  v.  Whittier,  170. 
Downey  v.  Beach,  171. 
Dox  V.  Dey,  149. 
Drake  v.  Kiely,  47. 

V.  Railway  Co.,  359. 
Dresser  v.  Blair,  109. 

V.  Dresser,  80. 
Dressier  v.  Davis,  222. 
Drew  V.  Beall,  300. 
Driess  v.  Frederick,  37. 
Driggers  v.  Bell,  161. 
Driggs  V.  Dwight,  227. 
Driukwater  v.  Dhismore,  95,  117. 
Driver  v.  Western  Union  R.  Co.,  69;. 
Drohn  v.  Brewer,  210,  214. 
Du  Belloit  V.  Lord  ^A'aterpark,  147. 
Dubois  V.  Ilermance,  89,  90. 
Duckworth  v.  Johnson,  319,  348. 
Dudley  v.  Reynolds,  170. 
Duffy  V.  City  of  Dui-uque,  235. 

v.  Shockey.    130,    136. 
Dufort  V.  Aba  die,  09. 
Dugan  V.  Railroad  Co.,  98. 
Duke  V.  Missouri  Pac.  Ry.  Co.,  70, 
Dullaghan  v.  Fitch,  133. 
Duncan  v.  Markley,  SO. 

V.  Tanner,  364. 

V.  Telegraph  Co.,  280. 
Dunkirk  Colliery  Co.  v.  Lever,  238^ 
Dunlap  V.  Wagner.  50. 

V.  Wiseman,  173. 
Dunlop  V.  Gregory,  136. 

V.  Grote,  238. 
Dunn  V.   Barnes,   197. 

V.  Railroad  Co..  231,  253,  256. 
Dunnica  v.  Sharp,  365. 
Dunshee  v.  Geoghegan,  364. 
Dupont  V.  McAdow,  378,  379. 
Duran  v.  Ayer,  169. 
Durand  v.  Borough  of  Ansonia,  13. 


CASES  CITED. 


395- 


[The  figures  refer  to  pages.] 


Diukee  v.  Railroad  Co.,  9(3. 

Durst  V.  S^Yit■t,  134,  137. 

Dui'yea  v.  Mayor,  etc.,  of  New  York, 

82,  S3,  164. 
Duryee  t.  ^Mayor,  etc.,  of  New  York, 

IGG. 
Dusli  V.  Fitzhugh,  211. 
Dustan  v.  McAndrew,  241. 
Dutro  V.  Wilson,  118. 
Duval  V.  Davey,  108. 

v.  Huut,  313,  330,  334. 
Dwight  V.  Railroad  Co.,  358. 
Dwiuel  V.  Brown,  123,  125. 
Dwyer  v.  Railway  Co.,  307. 
Dyar  v.  Sliugerland,  174. 
Dye  V.  Denbam,  212,  235. 
Dygert  v.  Bradley,  22. 


E 


Eakin  v.  Scott,  138. 
Eames  v.  Railroad  Co.,  50. 

V.  Town  of  Brattleboro,  71. 
Earl  V.  Tupper,  89. 
Earle  v.  Holderness,  115. 
Earl  of  Leicester  v.  Walter,  113. 
East  Line  &  R.   R.  Ry.  Co.  v.  Smith, 

312. 
Eastman  v.  Amoskeag  Manuf'g  Co.,  13. 

V.  Sanborn.  66. 
Easton  v.  Canal  Co.,  137. 

V.  Pennsylvania   &   O.    Canal    Co., 
133. 
East  Tennessee,  V.   &  G.   R.   Co.    v. 
Gurley,  307. 

V.  King,  304. 

V.  Lockhart.  37. 

V.  Staub,  70. 

V.  Toppins.  307. 
Eatman  v.  Railway  Co.,  207. 
Eaton  V.  Bell,  173. 

V.  Boissonnavilt,  169. 

V.  Lyman,  26,  30. 

V.  Railroad,  39. 
Eberly  v.  Rupp.  20. 
Efhols  V.  Louisville  &  X.  R.  Co.,  179. 
Eckert  v.  Long  Island  R.  Co.,  15. 
Eddowes  v.  Hopkins,  146. 
Eddy  v.  Coffin,  365. 

v.  Harri.s.  260. 
Eden  v.  Railroad  Co.,  298. 


Edmondson  v.  Nuttall.  114. 
Edmonson  v.  City  of  Moberly,  13. 
Edsall  V.  Howell,  358. 
Edwards  v.  Beebe,  77. 

V.  Leavitt,  216. 

V.  Ricks,  208. 

v.  Society,  112. 

V.  Wiester,  221. 
E.  E.  BoUes  Wooden  Ware  Co.  v.  U. 

S.,  358. 
E.  E.  Thomas  Fruit  Co.  v.  Start,  114, 
Ege  V.  Kille,  353. 
Ehrgott  V.  Mayor,  etc.,  44,  50. 
Ehrman  v.  Railroad  Co.,  232. 
Eisenlohr  v.  Swain,  74. 
Ekins  v.  East  India  Co.,  163. 
Ela  v.  Card,  368. 
Elbin  V.  Wilson,  210. 
Elbinger  Actien-Gesellschafft  fur  Fab- 
rication  von   Eisenbahn-Material    v. 
Armstrong,  57,  60,  62,  246. 
Elizabethtown  &  P.  R.  Co.  v.  Geoghe- 

gan,  133. 
Ellet  V.  Paxson,  366. 
Ellington  v.  Bennett,  177,  357. 

V.  Ellington,  100. 
Elliott  V.  Beesou,  175. 

V.  Ilerz,  209. 

V.  Van  Buren.  37,  214,  216. 
Ellis  V.  Cleveland.  44,  47,  51. 

V.  Hilton,  {JG. 

V.  Iowa  City,  13. 

V.  State.  228. 

V.  Wire,  194. 
Elmer  v.  Fessouden,  117. 
Ely  V.  Parsons,  30,  31. 
Emblen  v.  Myers,  6.  207,  210. 
Embrey  v.  Owen,  17,  26.  31. 
Emerson  v.  Atwator,  173. 

v.  Cochran,  20. 
Emery  v.  City  of  Lowell,  34,  92. 

V.  Gowen,  99. 

V.  Lowell,  362. 
Emily  Souder.  The,  197. 
Emmons  v.  Wcstfield,  179. 
Empire  Gold  Min.  Co.  v.  Bonanza  Gold 

Min.  Co.,  26. 
Empire  Mill  Co.  v.  Lovell,  114. 
Emrich  v.  Ireland,  352. 
Enders  v.  Board.  161,  194. 
English    v.    Spokane   Commission    Co., 
250. 


-396 


CASES   CITT5D. 


[The  Qgm-es  refer  to  pnf;os.] 


Enos  V.  Cole,  30. 

Erickson  v.  llailroad  Co.,  232. 

Erie  City  Iron  Works  v.  Barber,  43,  77. 

Erie  Ry.  Co.  v.  Lockwood,  1U4,  253. 

Erie   Telegrapli   &   Telephone    Co.    v. 

Grimes.  289. 
Erie  &  P.  K.  Co  v.  Doutliet,  ISO. 
Erwin  v.  Steamboat  Co.,  341,  345. 
Esmond  v.  Van  Benschoten,  137. 
Espy  V.  Jones,  375,  37S. 
Eten  V.  Luyster,  36. 
Etnyre  v.  McDaniel,  1G9. 
Eureka    Fertilizer    Co.    v.    Baltimore 
Copper,  Smelting  &  Rolling  Co.,  118. 
-Evans  v.  City  of  Huntington,  232. 

V.  Harries,  22G. 

V.  Kymer,  181. 

V.  Railroad  Co.,  50,  76. 
Evertson  v.  Sawyer,  234. 
Eviston  V.  Cramer,  217,  220. 
Ewalt  V.  Gray,  354. 
Ewart  V.  Kerr,  189. 
Ewen  V.  Railroad  Co.,  311,  324,  32G, 

339,  349,  350. 
Ewing  V.  Blount,  185,  194. 

V.  Railway  Co.,  10,  94, 


F 


Fabbri  v   Kalbflei.scb.  197. 

Fagnan  v.  Knox,  98. 

Fail's  Adm'r  v.  Presley's  Adm'r,  164. 

Fairbanks  v.  Kerr,  48. 

V.  Witter.  89. 
Fairchild  v.  Stage  Co.,  95,  105. 
Fairfax  v.  New  York  Cent.  &  H.  R.  R. 

Co.,  183. 
Fake  v.  Eddy's  Ex'r,  150. 
Falk  V.  Fletcher,  185. 
V.  Waterman   89. 
Falsom  v.  Log-Driving  Co.,  357. 
Falvey  v.  Stanford,  234. 
Faris  v.  Lewis.  44. 
Farman  \.  Lauman,  216. 
Farmers'  L.  &  T.  Co.  v.  Toledo,  A.  A. 

&  N.  M.  Ry.  Co.,  347. 
Farnham  v.  Ross,  135. 
Farrand  v.  Aldrich,  99,  113. 
Farrel  v.  Colwell,  177. 
Ear  well  v.  Davis,  2.57. 

V.  Warren,  209,  211,  213,  231,  230. 


Faulkuor  v.  Closter,  30. 

v.  Hart,  252. 
Fauntleroy  v.  Hannibal,  151,  173. 
Favor  v.  Philbrick,  257. 
Fay  V.  Guynon,  79. 

V.  Haven   27. 

V.  Parker,  202,  204,  200.  210. 

V.  Swan,  90,  lOG. 
Feeney  v.  Long  Island  11.  Co.,  72. 
Feeter  v.  Heath,  1G2. 
Felkner  v.  Scarlet,  100. 
Fell  V.  Railroad  Co.,  94. 
Felton  V.  Fuller,  117. 
Feuelon  v.  Butts,  98. 
Fei'guson  v.  Davis,  95. 

V.  Ferguson,  80. 

V.  Hosier,  249. 
Ferrand  v.  Aldrich,  lOG. 
Ferris  v.  Comstock,  Ferre  &  Co..  75. 
Fertilizing  Co.  v.  Hyde  Park,  13. 
Fessler  v.  Love,  242,  243,  245. 
Fessman  v.  Seeley,  136. 
Fetter  v.  Beal,  77. 
Fidler  v.  McKinley,  376. 
Field  V.  Insurance  Co.,  154. 
Fillebrown  v.  Hoar,  97. 
Filliter  v.  Phlppard,  3. 
Final  v.  Backus,  3,  IS-".. 
Finch  V.  Railroad  Co.,  98. 
Finley  v.  Hershey,  82,  359,  361. 
Finn  v.  Railroad  Coi-p.,  119. 
Finney  v.  Smith,  88,  89,  207. 
First  Ecclesiastical  Soc.  v.  Loomis,  169. 
First  Nat.  Bank  v    Strang,  181,  186. 

V.  W.  U.  Tol.  Co.,  265,  283,  292. 
Fish  V.  Dodge,  221. 

V.  FoUey,  79. 
Fishburne  v.  Engledove,  360. 
Fishell  V.  Winans,  161. 
Fisher  v.  Bidwell.  137,  154. 

V.  Boston,  15. 

V.  Brown,  119,  194. 

V.  Hamilton,  98. 

V.  Jansen,  72. 

V.  Naysmith,  358. 

V.  Otis,  172. 

V.  Prince,  114. 

V.  Sargent,  148. 
Fisk  V.  Fowler.  130. 
Fiske  V.  Fiske,  80. 
Fitzgerald  v.  Caldwell.  155. 

V.  Railroad  Co.,  lOG,  210,  263. 


CASES  CITED. 


39r 


[The  figures  refer  to  pages.] 


Fitzhugh  V.  McPherson,  172,  174. 

V.  Wiman.  119. 
Fitzpatrick  v.  Cottingham,  137,  139. 

V.  Railway  Co.,  94. 
Flanagan  v.  Womack,  217. 
Flanders  v.  Railroad  Co.,  232. 

V.  Tweed,  87. 
Flannery  v.  Anderson,  148. 

V.  Railroad  Co.,  213,  218,  236, 
Fleet  T.  Hollenkemp,  211. 
Fleischner  t.  Cable  Co.,  272. 
Fleming  v.  Beck,  5. 

V.  Town  of  Shenandoah,  91,  95. 
Flemington  v.  Smithers,  96. 
Flemming  v.  Ball,  14. 
Fletcher  v.  Dyche,  135, 

V.  Rylaads,  22. 

V.  Taylaur,  60,  61. 
Flick  V.  Wetherhee,  75. 
Flinn  v.  Barber,  153. 
Flori  v.  City  of  St.  Louis,  49. 
Floyd  Y.  Hamilton,  213. 
Fludyer  v.  Cocker,  367. 
Flureau  v.  Thronhill,  365. 
Flynn  v.  Fogarty,  96. 
Foley  V.  McKeegan,  132.  139. 
Folsom  V.  Driving  Co.,  359. 

V.  McDonough,  135. 
Fondavila  v.  Jourgensen,  74. 
Foote  V.  Blanchard,  153. 

V.  Sprague,  141. 

v.  Water  Co.,  361. 
Foppiano  v   Baker,  .306,  324. 
Forbes  v.  Railroad  Co..  186,  254. 
Force  v.  City  of  Elizabeth,  173, 
Ford  y.  .Tones,  96,  106. 

V.  Monroe,  298. 

V.  Railroad  Co.,  81. 

V.  Roberts,  186. 

V.  Williams,  117. 
Fordyce  v.  Culver,  232. 

V.  MoCants,  329,  332. 
Forman  v.  Forman,  172. 
Forney  v.  Geldmacher,  49,  50. 
Forstall  v.  Association,  173, 
Forster  v.  Forster,  170. 
For.'-yth  v.  I'almcr,  117. 

V.   Wells,  4,  116,  .3.58. 
Fort  V.  Orndoff,  .59. 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Burton, 
10,  94. 

V.  Hogsett,  359. 


Ft.  Worth  &  N,  O,  Ry.  Co.  v.  Wallace, 

359. 
Fosdick  V.  Greene,  195. 
Foster  v.  Adams,  240. 

V.  Dodd,  101. 
Fotheringham  v.  E.xpress  Co.,  101, 
Foulger  v.  Newcomb,  226. 
Fowlo  V.  New  Haven  &  Northampton. 
Co.,  82,  86. 

V.  Northampton  Co.,  361. 
Fowler  v.  Davenport,  164. 

V.  Gilman,  119. 

V.  Merrill,  185. 
Fox  V.  Harding,  5,  76,  246. 

V.  Railroad  Co.,  59,  60. 

V.  Stevens.  99,  215. 

V.  Wunderlioh,  212,  236. 
P'oxall  V.  Baruett,  91. 
Foxcraft  v.  Nagle,  155. 
Foy  V.  Troy  &  B.  R.  Co.,  3. 
Fraloff  V.  Railroad  Co.,  164. 
France  v.  Gaudet,  38,  246. 
Francis  v.  St.  Louis  Transfer  Co.,  47. 

V.  Schoellkopf,  26,  361,  362. 

v.  Telegraph  Co.,  104. 

V.  Transfer  Co.,  261. 
Frank  v.  Calhoun,  197. 
Franke  v.  City  of  St.  Louis,  325. 
Franklin  v.  Railway  Co.,  329. 
Franklin  Coal  Co.  v.  McMillan,  358. 
Fraser  v.  Berkeley,  109. 

V.  Echo   Mining   &    Smelting   Co.,. 
25. 
Frazer  v    Carpet    Co.,   158,    159,    165, 
166. 

V.  Smith.  59. 

V.  Telegraph  Co.,  281, 
Frazier  v.  Simmons,  240. 
Frederick  v.  Railroad  Co.,  261. 
Fredericksen    v.    Manufacturing    Co., 

109. 
Freeman  v.  Telegraph  Co.,  276,  278. 
Freese  v.  Crary,  26,  224. 

v.  Tripp,  96,  217. 
Frei  v.  Vogel,  119. 
French  v.  French,  151, 

V.  Lumber  Co.,  74. 

V.  Ramge,  30. 
Frey  v.  Dralios,  119. 
Frcymau  v.  Knecht,  249. 
Fried  v.  N(!W  York  Cent.  R.  Co.,  3. 
Friend  v.  Dunks,  97. 


598 


CASES  CITED. 


[Tbe  tigiires  refer  to  pajrt'S.] 


Frink  v.  Coe,  211. 

Frolireich  v.  Gammon,  49,  249.  250. 

Frost  V.  Jordon,  90. 

Fry  V.  Bennett,  210. 

V.  Dubuque  &  S.  W.  Ry.  Co.,  72. 
Frye  v.  Maine  Cent.  R.  Co.,  76. 
Fuchs  V.  Koerner,  G7. 
Fullam  V.  Stearns,  27. 
Fultz  V.  Wycoff,  76. 
Funk  V   Buck,  171. 
Furlong  v.  PoUeys,  179,  243,  244. 
Furnas  v.  Durgin,  369. 


G 


Gahan  v.  Telegraph  Co.,  104. 
Gainsford  v.  Carroll,  66. 
Gaither  v.  Blowers,  96,  212. 
Gale  V.  Leckie,  75. 

Galena  &   C.  U.   R.  Co.   v.  Appleby, 
222. 

V.  Rae,  251. 
Galena  &  S.  W.  R.  Co.  v.  Ennor,  194. 
Galisher  v.  Jones,  192.  193. 
Gallagher  v.  Bowie,  95. 
Gallatin  &  N.  Turnpike  Co.  v.  Fry,  120. 
Gallena  v.  Railroad  Co.,  97. 
Gallo  V.  McAudrews,  137. 
Gallup  V.  Miller,  38. 

V.  Perue,  162. 
Galsworthy  v.  Strutt,  136. 
Galveston  v.  Barbour,  302,  308,  319. 
Galveston,  H.  &  S.  A.  R.  Co.  v.  Dona- 
hue, 219. 

V.  Le  Gierse,  225,  306. 

V.  Matula,  302. 

V.  Parr,  359. 

V.  Porfert,  95. 

V.  Weseh,  232. 
Gamble  v.  MuUin,  51. 
Gammon  v.  Abrams,  161. 

v.  Howe,  134. 
Gannon  v.  Widman,  356. 
Gauong  v.  Green.  120. 
Ganson  v.  Madigan.  lioS.  240. 
Ganssly  v.  Perkins,  208. 
Gardner  v.  Barnett,  169. 

v.  Heartt,   12u. 

V.  Tatum,  235. 
Garland  v.  Wholeham,  216. 
Garrard  v.  Dawson,  164. 


Garretson  v    Brown,  119. 

Garrett  v.  Telosraph  Co.,  270,  2SS. 

Gaskins  v.  Davis,  358. 

Gaslight  Co.  v.  Homo,  W.  &  O.  R.  Co., 

355. 
Gaslight  &  Coke  Co.  v.  Vesti-y  of  St. 

Mary  Abbott's,  13. 
Gass  V.  Sanger,  369. 
Gates  V.  Railroad  Co..  35. 

V.  Reynolds.  366. 
Gatton  V.  ToUey,  355. 
Gautler  v.  English.  223. 
Gay  V.  Wiutor,  309,  351. 
Gay  Manufg  Co.  v.  Camp,  137. 
Gee  V.  Railroad  Co.,  56,  58,  60,  257. 
Geiger  v.  Railroad  Co.,  133. 
Gelpcke  v.  City  of  Dubuque,  173. 
Genet  v.  Kissam,  169. 
Genin  v.  Ingersoll,  172,  174. 
George  and  Richard,  The,  43. 
Georgetowu,  B.  &  L.  Ry.  Co.  v.  Eagles, 

42. 
Georgia  R.  Co.  v.  Homer,  98. 

V.  Olds,  214. 

V.  Pittman,  340. 
Georgia    Railroad   «fc   Banking    Co.    v. 
Garr.  343. 

V.  Oaks,  299,  340. 
Gerrish  v.  Manufacturing  Co.,  27,  116. 
Gest  V.  City  of  Cincinnati,  156. 
Ghen  v.  Rich,  186. 
Gibbs  V.  Chase.  116,  117. 

V.  Chisolm.  174. 

V.  Fremont,  151,   154. 

V.  Gildersleevo,  2.")5,  2.57. 
Gibert  v.  Railroad  Co.,  173. 
Giblin  v    Mclutyre,  95. 
Gibson  v.  Cincinnati  Enquirer,  157. 

V.  Fischer,  74. 

V.  Humphres',  115. 
Giese  v.  Schultz.  102.  106.  374. 
Gilbert  v.  Burteushaw,  233. 
Gile  V.  Stevens,  26,  116. 
Giles  V.  O'Toole,  74. 
Gilkerson-Sloss     Commission     Co.     v. 

Yale,  88. 
Gill  V.  Railroad  Co.,  323. 
Gillard  v.  Railway  Co.,  302. 
Gillespie  v.  Mayor,  etc.,  of  New  York, 

1.50. 
Gillies  V.  Wofford,  164. 
Gilman  v.  Andrews,  187,  194,  242. 


CASES   CITED. 


sy9 


[The  figures  refer  to  pages.] 


"Gilman  v.  Gilmau,  355. 
Gilmore  v.  Uriscoll,  o59. 
Gilpius  V.  Couseqiia,  149. 
Girard  v.  Tasgait,  239. 
Givens  v.  Vau  Studdiford,  361. 
Glaspy  V.  Cabot,  179. 
Glasscock  v.  Shell,  373. 
Gleasou  v.  Gary,  3G2. 

V.  Pinney,  199. 
Glidden  v.  Poolei'.  249. 
Gloucester  Grammar  School  Case,  14, 
Gobble  V.  Liuder,  134. 
Goddard  v.  Foster,  161. 

V.  Grand  Trunk  Ry.,  6. 

V.  Railroad  Co.,  98,  lol,  218,  219, 

V.  Westcott,  373,  374,  379. 
Godeau  v.  Blood,  100,  105. 
Godwin  v.  McGeehee,  155. 
Goetz  V.  Ambs,  210,  213,  231,  236. 
Goft'  V.  Inhabitants  of  llehoboth,  161. 
Gohen  v.  Railroad  Co.,  305. 
Gold  V.  Bissell,  101. 

V.  Ives,  31. 
Gold  Hunter,  The,  164. 
Goldsmith's  Adm'r  v.  Joy,  107,  109. 
Gomez  \.  Joyce,  99. 
Goodall  V.  Thurman,  374. 
Goodbar  v.  Lindsley,  87. 
Goodchap  v.   Roberts,  169. 
Gooding  v.  Shea,  120. 
Goodno  V,  City  of  Oshkosh,  71,  92,  105, 

231. 
Goodnow  V.  Willard,  25,  28. 
Goodpaster  v.  Porter,  366. 
Goodsell  V.  Railroad  Co.,  307. 
Goodtitle  v.  Tombs,  352,  353. 
Gordon  v.  Brewster,  67. 

V.  Norris,  238,  239. 

V.  Swan.  146. 
Gores  v.  Graff,  315. 
Gorham  v.  Railroad  Co.,  323. 
Goraian  v.  Railway  Co.,  339. 

V,  Southern  Pac.  Co.,  98. 
Goss  V.  Railroad  Co.,  302. 
Gould  V.  Bishop  Hill  Colony,  141.  171. 
Gove  V.  Watson,  117. 
Governor,  etc.,  British  Cast  Plate  Mau- 

ufac-turers  v.  Meredith,  15. 
Gower  v.  Carter,  172. 

V.  Saltniarsh,  140. 
Grable  v.  Mai  grave,  lOO,  108,  202,  211, 
212,  215. 


Grace  v.  Dempsey,  110. 

v.  McArthur,  110. 
Graessle  v.  Carpenter,  359. 
Graham  v.  Maitland,  179. 

V.  Railroad  Co..  212,  213,  235. 
Grainger  v.  Hill,  101. 
Grand  Rapids  tV:  B.  C.  R.  Co.  v.  Van 

Deusen,  79. 
Grand  Tower  Min.  Manuf'g  &  Transp. 

Co.  V.  Phillips,  m,  130,  179,  243. 
Grand  Tnmk  Ry.  Co.  v.  Jennings,  342, 

V.  Ruel,  303. 
Grant  v.  Healey,  198. 

V.  Hill,  369. 

V.  King,  164,  185. 

V.  Ludlow's  Adm'r,  3. 

V.  Tallman,  370,  371. 

V.  Wiley.  373,  375. 
Grasselli  \\  Lowden,  135,  136. 
Grass  Val.  Quartz  Min.  Co.  v.  Stack- 
house,  222. 
Graver  v.  Sholl,  26. 
Graves  v.  Moore,  89,  90. 
Gray  v.  Bank,  194. 

V.  Bean,  100. 

V.  Briscoe,  171. 

V.  Crosby,  141.  142. 

V.  Elzroth,  112. 

V.  McDonald,  306. 

V.  Packet  Co.,  253. 

V.  Railroad  Co.,  238. 

V.  Van  Amringe,  161. 
Great  Western  R.  Co.  v.  Miller,  219. 
Grebert-Borguis  v.  Nugent,  60,  246. 
Greeley,  S.  L.  &  P.  Ry.  Co.  v.  Yeager, 

206. 
Green  v.  Biddle,  354. 

V.  Boston  &  L.  R.  Co.,  183. 

V.  Button,  20. 

V.  Clark,  120. 

V.  Craig,  210.  214. 

V.  Edick,  120. 

V.  Garcia,  164. 

V.  Mann,  69. 

V.  Price,  13(5. 

V.  Railroad  Co.,  298,  299,  302. 

V.   Spencer,  6. 
V.  Sperry,  115. 
Gr(>ene  v.  (ioddard,  73. 

V.  Williams,  71. 
Greenlield  Banl<  v.  r.oavilt.  194. 
Gi'eciHichl  Sav.  I'.;ink  v.  Siinous,  160. 


400 


CASES   CITED. 


[The  fijiuros  refer  to  pases.] 


Greenish  v.  Standard  Sugar  Refinery, 

155. 
Greenleaf  v.  McCollej\  379. 
Greenville   i:    C.    K.    Co.    v.    Partlow, 

215. 
Greer  v   Mayor,  etc.,  118. 

V.  Tweed,  135. 
Gregg  V.  Fitzhujjh,  187,  194. 
Gregory  t.  Chambers,  91. 
Gresham  v.  Taylor,  75. 
Grey  v.  Grant,  201. 
Griffey  v.  Kenuard,  353. 
Griffin  v.  Brown,  91. 

V.  Colver,  3,  70,  72,  74,  244,  277. 

V.  Wilcox,  2. 
Griffith  V.  Burden,  181. 

V.  Railway  Co.,  355. 
Griggs  V.  Fleckenstein,  47. 
Grimes  v.  Blake,  172. 
Grindle  v.   Eastern  Exp.  Co.,  61,  G4, 

257. 
Gring  v.  Lerch,  374. 
Griswold  v.  New  York  Cent.  &  H,  R. 
R.  Co.,  72. 

V.  Sabin,  366. 
Grocers'  Nat.  Bank  v.  Clark,  3. 
Grogan  v,  Fouudiy  Co.,  323. 
Grohmann  v.  Kirschman,  214. 
Gronan  v.  Kukkuck,  96,  225. 
Groover  v.  Wartield,  119. 
Grosso  V.  Railroad  Co.,  298. 
Grotenkemper  v.  Harris,  334,  337. 
Gruman  v.  Smith.  192. 
Grand  v.  Pendergast,  252. 

V.  Van  Vleck.  217. 
Guengerech  v.  Smith,  212. 
Guengerich  v.  Smith,  216. 
Guild  V.  Guild,  SS. 
Guildford  v.  Anglo-French  Steamship 

Co.,  213. 
Guille  V.  Swan,  48. 
Guiteman  v.  Davis,  198. 
Gulf,   C.   &  S.   F.   Ry.  Co.  v.   Camp- 
bell, 88. 

V.  Compton,  327,  340. 

V.  Finley,  303. 

V.  Helsley,   361. 

V.  Hodge,  68. 

V.  Hurley,  102. 

V.  John.  312. 

V.  Johnson,  347. 

V.  Levy,  296. 


Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Loonle,  273^ 
2S7,  294.    ■ 
"v.  McGowan,  359. 

V.  McMaunewitz,  69. 

V.  Richards,  362. 

v.  Southwick,  309,  317. 

V.  Steele,  22. 

V.  Trott,  10,  94. 
Gulliver  v.  Fowler,  371. 
Gully  V.  Remy,  141. 
Gunderson  v.  iClevator  Co.,  325. 
Gunu  v.  Head,  172. 
Guuter  v.  Astor,  74. 
Guptill  V.  Verback,  377. 
Gustafson  v.  Wind,  225. 
Guthrie  v.  I'ussley,  367. 

V.  Wickliffs,  156. 
Gutta  Percha  &  Rubber  Manufg  Co. 

V.  Benedict,  153. 
Gwin  V.  Breedlove,  195. 
Gwinu  V.  Whitaker's  Adm'x,  156. 


H 


Hackenberry  v.  Shaw,  141. 
Hackett  v.  Railroad  Co.,  254. 
Hadley  v.  Baxendale,  38,  43,  49,  54- 
58,  60,  63,  244.  257.  259,  267, 
268,  277,  282,  290-293. 

V.  Telegraph  Co.,  273,  286. 
Hadsell  v.  Hancock,  90. 
Haehl  v.  Railroad  Co.,  304. 
Hagan  v   Railroad  Co.,  6,  98,  219. 

V.  Riley,  90. 
Hager  v.  Blake,  170,  172. 
Hagood  V.  Aikin,  156. 
Hahn  v.  Concordia  Society,  142. 

V.  Cummings,  366. 

V.  Horstman,  135. 
Haight  V.  Hayt,  3. 
Haines  v.  Schultz,  203,  208,  214. 
Hair  v.  Barnes,  74. 
Hale  V.  Bonner,  101,  103. 

V.  Chard  Union,  301. 

V.  Lawrence,  14. 
Hales  V.  Railroad  Co.,  59,  255,  257. 
Haley  v.  Railroad  Co.,  305. 
Hall  V.  Crowley,  135. 

V.  Dean,  371. 

V.  Hall.  156.  221. 

V.  Iluckins,  153. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


401 


Hall  V.  Railroad  Co.,  231,  331. 
Hallam  v.  Post  Pub.  Co.,  113. 
Hallett  V.  Noviou,  149. 
Halley  v.  Gregg,  113. 
Hallock  V.  Slater,  139. 
Halloway  v.  Stephens,  59. 
Hallum  V.  Dickinson,  157. 
Halstead  v.  Nelson,  72,  89. 
Hamer  v.  Hathaway,  149,  163,  185. 

Y.  Kirkwood,  148. 
Hamilton  v.  Eno,  99. 

V.  Ganyard,  161. 

V.  Jones,  209. 

V.  Kilpatrick,  213. 

V.  Le  Grange,  155. 

V.  McPherson,  252. 

V.  MagiU,  38.  61. 

V.  Moore,  130. 

V.  Railroad  Co.,  13,  14,  98,  203,  210, 
261,  263. 

V.  Van  Rensselaer,  150,  169. 

T.  Western  N.  C.  R.  Co.,  60. 
Hamlin  v.  Railway  Co.,  33,  92,  105,  259. 
Hammer  v.  Breidenbach,  140. 

V.  Schoenfelder,  61,  244,  245. 
Hammond  v.  Bussey,  40,  58,  60,  250. 

V.  Schiff,  118. 
Hampton  v.  Jones,  44,  47,  51. 
Hancock  v.  Franklin  Ins.  Co.,  196. 

^.  Hubbell,  26. 
Hand  v.  Armstrong,  170, 

V.  Church,  161. 
flandley  v.  Chambers,  149. 
Handy  v.  Johnson,  101. 
Haney  Manuf  g  Co.  v.  Perkins,  17. 
Haniford  v.  City  of  Kansas,  95. 
Hanley  v.  Sutherland,  228. 
Hanmer  v.  Wilsey,  116. 
Hanna  v.  Mills.  240. 
Hannibal  &  St.  J.  R.  Co.  v.  INIartin,  95. 

105. 
Hanover  Water  Co.   v.   Ashland   Iron 

Co.,  81. 
Hanson  v.  Railroad  Co.,  218,  219,  261. 
Ilardenbergh  v.  Railroad  Co.,  231. 
Harder  v.  Harder,  363. 
Harding  v.  Larkin,  90,  368,  369. 

V.  Townshend.  118,  342. 
Hardy  v.  Nelson,  309. 

T.  Railway  Co..  .302. 
Hare  v.  Marsh.  212. 
Harper  v.  McMains,  215. 

LAW  DAM.— 26 


Hargrave  v.  Penrod,  222. 
Hargreaves  v.  Kimberly,  81,  83. 
Hargrove  v.  Creighton,  198. 
Harlow  v.  Thomas,  370,  371. 
Harman  v.  Cuudiff,  208,  211,  214. 
Harmony  v.  Bingham,  135. 
Harper  v.  Ely,  153,  173. 

V.  Miller,  00. 
Harrington  v.  Glenn,  156. 

V.  Murphy,  371. 
Harris  v.  Eldred,  117. 

V.  Jaffray,  221. 

V.  Kerr,  30. 

V.  Railroad  Co.,  179,  233. 
Harrison  v.  Cage,  373. 

V.  Charlton,  187,  194. 

V.  Ely,  203,  207,  214. 

V.  Kiser,  359. 

V.  Swift.  102,  373. 
Hart  V.  Railroad  Co.,  218. 
Plartford  &  S.  Ore  Co.  v.  Miller,  116, 

367. 
Hartshorn  v.  Railroad  Co.,  167. 
Harvey  v.  Dunlop,  22. 

V.  Railroad  Co.,  251,  252,  257. 

V.  Snow,  352. 
Hasbrouck  v.  Tappen,  134,  136. 
Haskell  v.  Hunter,  239. 
Haskins  v.  Lumsden,  112. 
Hastings  v.  Stetson,  99,  106. 

v.  Wiswall,  174. 
Hatch  V.  Fuller,  99,  106. 

V.  Vermont  Cent.  R.  Co.,  13. 
Hatcher  v.  Pelham,  185. 
Hatfield  v.  Railroad  Co..  361, 
Hathaway  v.  Lynn,  13(i,  139. 
Hathorne  v.  Stiu.son,  29. 
Hattin  v.  Chni)man,  374. 
Hauxhurst  v.  Ilovey,  153. 
Havana,  R.  &  E.  R.  Co.  v.  Walsh,  2.31. 
Ilavemeyer  v.  Cunningham.  67. 
Haven  v.  Beidlor  Manuf'g  Co.,  30. 

v.  Wakefield,  61. 
Haverly  v.  State  Line  &  S.  R.  Co.,  40, 
Ilaverstick  v.  Erie  Gas  Co.,  88. 
Hawes  v.  Knowles,  96,  206. 

V.  Woolcock,  197. 
Hawk  V.  Anderson,  221. 

V.  Ridgway,  101,  212,  235. 
Hawn  V.  Bangliart,  100. 
Hay  V.  Reid.  111.  112. 
Ilavdcn  v.  Anderson,  119. 


402 


CASES   CITED. 


[The  tijiuros  refer  to  pages.] 


Hayden  v.  Bartlett,  1G3. 

V.  Demels,  240,  241. 
Hayes  v.  Massachusetts  Mut  Life  Ins. 
Co.,  ISl. 

V.  Rfiihvay  Co.,  150,  107. 

V.  Todd,  110. 
Hayuer  v.  Cowden,  208,  211,  212. 
Haynes  v.  Erk,  232. 
Hays  V.  Creary,  98. 

V.  Railroad  Co.,  97,  219. 
Hayward  v.  Caiu,  118. 

V.  Newtou,  233. 
Hazard  v.  Israel,  218. 
Head  v.  Railroad  Co.,  93,  98. 
Healy  v.  Gilman,  173. 
Heard  v.  Bowers,  136. 
Heaver  v.  Lauahan,  117. 
Ilecht  V.  Harrison.  30. 
Heddles  v.  Railroad  Co.,  100. 
Hedrick  v.  Navigation  Co.,  328. 
Hefloy  V.  Baker,  208. 
Hegomau  V.  Railroad  Corp.,  235. 
Heideuheimer  v.  Ellis,  149. 
Heil  V.  Glandiug,  212. 
Heilbroner  v.  Douglass,  195. 
Heimburg   v   Ismay,  366. 
Heirn  v.  McCaughan,  258,  259. 
Heiser  v.  Loomis,  226. 
Henderson  v.  Cansler,  130. 

V.  Chaires,  356. 

V.  Laurens,  174. 

V.  McReyuolds,  110. 

V.  Squire,  90. 

V.  Stainton,  221. 
Hendrlf'kson  v.  Anderson,  67. 

V.  Kingsbury,  216. 
Hendrie  v.  Neelon,  179. 
Heneky  v.  Smith,  208. 
Hcukos  V.  City  of  Minneapolis,  46. 
Henklo  v.  Schaub,  17. 
Ilenly  v.  Mayor,  etc..  of  Lyme,  18. 
Henuershotz  v.  Gallagher,  365. 
Hennessy  v.  Metzger,  135. 
Henning  v.  Van  Tyne,  157. 
Hennion's  Ex'rs  v.  Jacobus,  153. 
Henry  v.  Davis,  88,  130. 

V.  Flagg.  174 

V.  Thompson,  171. 
Hepburn  v.  Griswold,  195. 

V.  Sewell,  163. 
Herbert  v.  Hardeubergh,  221. 
V.  Railway  Co.,  171. 


Herbert  v.  Rainey,  361. 
llerudon  v.  Yeuable,  360. 
Herreshoff  v.  Tripp,  355. 
Herring  v.  Jester,  99. 

V.  Skaggs,  249,  250. 
Herron  v.  Telegraph  Co.,  272,  286. 
Horsey  v.  Walsh,  181. 
Hershey  v.  Hershey,  174. 
Hetherington  v.  Railway  Co.,  329,  331. 
Hewitt  v.  Lumber  Co.,  162. 
II(>wlott  V.  George,  98.  109,  110. 
Hewson-Herzog  Supply  Co.  v.  Minne- 
sota Brick  Co.,  242. 
Hexter  v.  Knox,  61,  74. 
Hoyer  v.  Salsbury,  338. 
Hey  wood  v.  Hey  wood,  199. 
Hibbard  v.  Telegraph  Co.,  11,  26,  265, 

283. 
Hickman  v.  Haynes,  243. 
V.  Railway  Co.,  325. 
Hicks  V.  Foster.  87. 

V.  Railway  Co.,  342,  343. 
Higbie  v.  Farr,  140. 
Higgins  V.  Butcher,  297. 
V.  Dewey,  50. 
V.  Railroad  Co..  208,  214. 
V.  Sargent,  145-147,  154. 
Higginson  v.  Weld,  139,  252. 
Higley  v.  First  Nat.  Bank,  156. 
Hildreth  v.  Thompson,  356. 
Hill  V.  Maupin.  6. 
V.  Myers,  355. 
V.  Railroad  Co.,  219. 
V.  Smith.  243. 
V.  Taylor,  110. 
V.  Telegraph  Co..  292. 
HiUhouse  v.  Mix,  121. 
Hinchman  v.  Patterson  Horse  R.  Co., 

13. 
Illnekley  v.  Beckwith,  61,  75. 

v.  Pittsburgh  Bessemer  Steel  Co., 
239. 
Hiude  v.  LiddeU,  60,  (id,  244. 
Hiner  v.  Richter,  365. 
Hinton  v.  Sparkes.  138. 
Hiutz  V.  Graupner,  113. 
Hitchcock  V.  Harrington,  356. 
Hitt  V.  Allen,  148. 
Hixon  V.  Hixon,  198. 
Hoadley  v.  Transportation  Co.,  49,  50. 

V.  Watson.  89,  207. 
Hoagland  v.  Segur,  136,  139,  140. 


CASES   CITED. 


403 


[The  figures  refer  to  pages.] 


Hoare  v.  Allen,  155. 

Hobbs  v.  Railroad  Co.,  4,  40,  47,  105, 

25S,  259. 
Hobson  V.  Tbellusson,  28. 

V.  Trevor,  142. 
Hodapp  y.  Sharp,  234. 
Hodgdon  v.  Hodgdon,  156. 
Hodges,  Ex  parte,  137. 

V.  King,  137.  142. 

V.  Thayer,  3(j7. 
Hodgkins  v.  Price,  IIG,  3.j3,  354. 
Hodgson  V.  Milhvard,  213. 
Hoffman  v.  Cliamberlain,  242. 

V.  Railroad  Co.,  97. 
Hogan  V.  Kyle,  3G6. 
Hogg  V.  Manufacturing  Co.,  149. 

v.  Pinckney,  98. 
Hogue  V.  Railroad  Co.,  312. 
Holbrook  v.  Tobey,  13G. 
Holden  v.  Trust  Co.,  169. 
Holdfast  V.  Shepard,  121. 
Holland  v.  Brown,  308,  309. 

V.  Worley,  177. 
HoUingsworth  v.  City  of  Detroit,  173. 
Hollis  V.  Telegraph  Co.,  270. 
HollOAvay  v.  Griffith,  374,  377. 
Holmes  v.  Blyler,  110. 

V.  Davis,  118. 

V.  Halde.  71. 

V.  Jones,  235. 

V.  Mather,  22. 

V.  Railway  Co.,  304. 

V.  Weaver,  89. 

V.  Wilson.  85. 
Holt  V.  Van  Eps,  215. 
Home  Ins.  Co.  v.  Baltimore  Warehouse 
Co.,  119. 

v.  Pennsylvania  R.  Co.,  165,  166. 
Honsee  v.  Hammond,  29. 
Hood  V.  Palm,  224. 
Hooker  v.  Newton,  2,36. 
Hopkins  v.  Commercial  Co.,  359. 

v.  Crittenden,  170. 

V.  Lee,  364. 

V.  Orr,  235. 

V.  Railroad  Co.,  211,  361. 

V.  Shepard,  150. 
Hoppe  V.  Railway  Co.,  71,  328. 
Hopper  V.  Haines,  180. 
Hopple  V.  Higbee,  114. 
Home  V.  Midland  R.  Co.,  60,  62,  245, 
250,  257. 


Horner  v.  Wood,  36. 
Hornketh  v.  Barr,  99. 
Horsford  v.  Wright,  370. 
Horton  v.  City  of  Taunton,  47. 

V.  Cooley,  177. 
Hosking  v.  Phillips,  303. 
Hosmer  v.  Wilson,  239. 
Hotchkiss  V.  Jones,  215. 
Houghkirk  v.  Canal  Co.,  71,  322. 
Houghton  V.  Page,  145. 
House  V.  Female  College,  174. 
Houser  v.  Pearce,  38. 
Houston  V.  Jamisons  Adm'r,  175. 
Houston  City  St.  R.  Co.  v.  Jageman, 

98. 
Houston  &  G.  N.  R.  Co.  v.  Randall,  95. 
Houston  &  T.  C.  R.  Co.  v.  Baker,  305. 

V.  Boehm,  71. 

v.  Bradley,  305. 

V.  Burke,  183. 

V.  Cowser,  330. 

V.  Hill,  76. 

V.  Jackson,  256. 

V.  Moore,  305. 

V.  Muldrow,  165. 

V.  Nixon,  327 
Hovey  v.  Edmison,  172. 

V.  Grant,  ISO 
Howard  v.  Barnard,  233,  234. 

V.  Canal  Co.,  337. 

V.  Daly,  67 

V.  Farley,  174. 

V.  Grover,  234. 

V.  Hopkyns.  142. 

V.  Manderfield,  114. 
Howard  County  Com'rs  v.  Leggf,  31ft. 
Howard  OD  Co.  v.  Davis,  72. 
Howcott  V.  Collins,  149. 
Howe  V.  Ray,  110. 
Howell  V.  Goodrich,  77. 

V.  Moores,  370. 

V.  Scoggins,  89. 
Hoyt  V.  Thompson,  3. 

V.  Wildfire,  07. 
Huber  v.  Teuber,  216. 
Huckestein  v.  Allegheny  City,  88. 
Huckle  V.  Money.  201,  210,  214. 
Hudson  V.  Dale,  111. 

V.  Houser,  312.  313. 
Hudspeth  \.  Allen,  31. 
Huerzplor  v.  Railroad  Co.,  323. 
Huey  V.  Macon  Co.,  173. 


404 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Hufford  V.  Railroad  Co.,  201. 
Huftalin  v.  Misuer,  211. 
Hughes  V.  Graeme.  89. 

V.  McDonough,  4'J. 

V.  Telegraph  Co.,  2TS. 
Hulbert  v.  City  of  Topeka,  299. 
Hull  V.  Railway  Co.,  334. 
Hummel  v.  Browu,  l-io. 
Humphreys  v.  Morton,  173. 
Humphreysville    Copper    Co.   v.  Ver- 
mont Copper  Min.  Co.,  212. 
Humphries  v.  Johnson,  21(j. 
Hunn  V.  Railroad  Co.,  338,  339. 
Hunt  V.  D'Orval,  26,  33,  92. 

V.  Improvement  Co.,  74. 

V.  Jucks,  149. 

V.  O'Neill,  355. 

V.  Raplee,  368. 

V.  Tibbetts,  79. 
Hunter  v.  Hatfield,  37C. 

V.  Stewart,  226. 
Huntingdon  &  B.  T.  R.  Co.  v.  Decker, 

315. 
Huntington  v.  Railroad  Co.,  67. 
Huntington  &  B.  T.  R.  &  Coal  Co.  v. 

English,  193. 
Huntley  v.  Bacon,  206. 
Huntress  v.  Burbank.  155. 
Hurd  V.  Hall,  371. 

V.  Hubbell,  185. 
Hurlehy  v.  Martine,  110. 
Hurley  v.  Buchi,  75. 

V.  Jones,  358. 
Hurst  y.  Railway  Co.,  348,  349. 
Huse  V.  Loomis  Ice  &  Transp.  Co.  v. 

Heinze,  181. 
Hussey  v.  Bank,  194. 
Huston  V.  Rjiilroad  Co.,  222. 
Ilutchins  V.  Railway  Co.,  235,  302,  331, 
347. 

V.  Roundtree,  369. 
Hutton  T.  Windsor,  315. 
Huxley  v.  Berg,  44,  51. 
Hyatt  V.  Adams,  215.  298,  299. 

V.  Trustees  of  Village  of  Rondout, 
47. 

V.  Wood,  31. 
Hyde  v.  Railway  Co..  302. 
.  V.  Stone,  149.  163.  164. 
Hyde  Park  » .  Gay,  14. 
Hydraulic  Co.  v.  Chatfield,  170. 


Hydraulic  Engineering  Co.  v.  M'Haffle, 

62,  240. 
Hylton  V.  Brown,  116. 
Hynes  v.  Patterson,  91. 


I.  de  S.  V.  W.  do  S.,  101. 
Ihl  V.  Railroad  Co.,  26,  320,  322,  349. 
Ikard  v.  Telegraph  Co.,  102. 
Illinois  Cent.  R.  Co.  v.  Baches.  338. 

V.  Barron,  301,  307,  335,  343. 

V.  Cobb,  00,  01,  09,  256. 

V.  Crudup,  339,  340. 

V.  Grabill,  361. 

V.  Hammer,  218. 

V.  Owens,  256. 

V.  Slater,  319,  338,  339. 

V.  Sutton,  98. 

V.  Welden,  311,  314,  316. 
Illinois  «fc  St.  L.  R.  Co.  v.  Whalen,  .332.. 
Illinois  &  St.  L.  Railroad  &  Coal  Co.. 
V.  Cobb,  118. 

V.  Ogle,  359. 
Imboden  v.  Mining  Co.,  110. 
Independent  Ins.  Co.  v.  Thomas,  197. 
Indiana  B.  &  W.  R.  Co.  v.  Allen,  186.. 

V.  Eberle,  82. 
Indianapolis,  B.  &  W.  R.  Co.  v.  Bimey, 

47,  64,  201. 
Indianapolis,  P.  &  C.  R.  Co.  v.  Pitzer,. 

37. 
Indianapolis  &  St.  L.  R.  Co.  v.  Stables,. 

91,  95,  105. 
Ingalls  V.  Bills,  60. 
Ingledew  v.  Cripps,  142. 

V.  Railroad  Co.,  255. 
Ingram  v.  Rankin,  ISO,  189,  194. 
Inhabitants  of  Alua  v.  Plummer,  306.. 
Inhabitants  of  Canton  v.  Smith,  101. 
Inhabitants  of  AVestfield  v.  Mayo,  89, 

91. 
Insurance  Co.  v.  Brame,  298. 
International  Ocean  Tel.  Co.  v.  Saun- 
ders, 104. 
International  &  G.  N.  R.  Co.  v.  Davis, 
358. 

V.  Garcia.  220. 

V.  Kindred.  331,  339. 

V.  McNeel,  347. 


CASES   CITED. 


405 


[The  figures  refer  to  pages.] 


International  &  G.  N.  R.  Co.  v.  Miller, 
220. 

T.  Nicholson,  182. 

V.  Ormoud,  312. 

V.  Smith,  97,  225. 

V.  Telephone  &  Tel.  Co.,  206. 

T.  Wilkes,  97. 
Iron  Mountain  R.  Co.  v.  Bingham,  13. 
Irvin  V.  Hazleton,  157. 
Irving  V.  Greenwood,  377. 
Irwin  V.  Askew,  364. 

V.  Dearman,  99. 
Isaac  Newton,  The,  162. 
Isenhart  v.  Brown,  171. 
Ives  V.  Humphreys,  34,  92. 
Iveson  V.  Moore,  IS. 


Jacks  V.  Turner,  154. 
Jackson  v.  Cleveland.  133. 

V.  Covert's  Adm'rs,  222. 

V.  Evans,  194. 

V.  Hall,  44,  51. 

V.  The  Julia  Smith,  253. 

V.  Noble,  96. 

V.  Railroad  Co.,  37,  49. 

V.  Schmidt,  210. 

V.  Town  of  Bellevieu,  46. 

V,  Turrell,  120. 

V.  Wood,  3.j3,  355. 
Jackson's  Ex'rs  v.  Lloyd,  155. 
Jacksonville,  T.  &  K.  W.   Ry.   Co.  v. 

Roberts,  229. 
Jacobs  V.  Hoover,  109. 

V.  Railroad  Co.,  218. 

V.  Sire,  212,  378. 
Jacobs'  Adm'r  v.  Railroad  Co.,  211. 
Jacobson  v.  Poindexter,  88. 
Jacobus  V.  Monongahela  Nat.  Bank,  90. 
Jacot  V.  Emmett,  1.50. 
Jacques  v.  Bridgeport  Horse  R.  Co.,  72. 
James  v.  Chri.sty,  298. 

v.  Railroad  Co.,  347. 
.Tane  v.  Hagon,  155. 
Janson  v.  Stuart,  17. 
•Taqua  v.  Headiugton.  137. 
Jaquith  v.  Hudson,  12<5,  134. 
Jasper  v.  Purnell,  211. 
Jay  V.  Alniy.  14.  98. 
Jefferson  v.  .Adams,  210. 


Jefferson  Co.  v.  Lewis,  109. 
Jefferson  Co.  Sav.  Bank  v.  Eborn,  207. 
JeffersonviUe  M.  &  I.  R.  Co.  v.  Esterle, 
83,  116. 

V.  Riley,  35. 
JeffersonviUe  R.  Co.  v.  Rogers,  214. 

V.  Swayne's  Adm'r,  303. 
Jeffrey  v.  Bigelow.  44. 
Jellett  V.  Railroad  Co.,  ISO,  254. 
Jemmison  v.  Gray,  133. 
Jenkins  v.  Jones,  370. 

V.  McConico,  185,  194. 

V.  Steanka,  222. 
Jennette  v.  Sullivan,  374. 
Jennings  v.  Johnson,  119. 

V.  Maddox,  210. 

V.  Miller,  135. 

V.  Railway  Co.,  342. 
Jennison  v.  Hapgood,  174. 
Jerome  v.  Smith,  212. 
Jeter  v.  Glenn,  90,  30S. 
Jewell  V.  Grand  Trunk  Ry.,  37. 
Jewett  V.  Whitney,  11,  26. 
J.    I.    Case   Plow    Works   v.    Niles    & 

Scott  Co.,  249. 
Joch  V.  Dankwardt,  93,  95. 
Jockers  v.  Boigman,  209. 
Johannesson  v.  Borschenius,  117. 
Johnson  v.  Allen,  179,  208,  211,  215, 
243. 

V.  Atlantic  &  St.  L.  R.  Co.,  157. 

V.  Brown,  222. 

V.  Camp,  211. 

V.  Caulkius,  373,  370. 

V.  Chicago  &  N.  W.  Ry.  Co.,  71. 

V.  Collins.  371. 

V.  Disbrow,  99,  215, 

V.   Druiiimond,  51. 

V.  Gwinn,  136. 

V.  luhabilants  of  Holyoke,  76. 

V.  Jenkins,  102.  213,  377,  379. 

V.  Marshall,  187,  194. 

V.  Railroad  Co.,  164,  225,  326,  330, 
339,  347. 

V.  Robertson,  99. 

V.  Schultz,  97. 

V.  Smith,  212,  213,  235. 

V.  Stallcup,  197, 

V.  State,  14. 

V,  St  ear,  119. 

V.  Summer,  164, 

V.  Travis,  373,  377,  379. 


406 


CASES   CITED. 


[The  fisiiros  refor  to  pa^es.] 


Johnson  v.  Von  Kettler,  211,  226,  235. 

V.  Weoduiau,  202. 

V.  Wells,  Fargo  &  Co.,  93,  95. 
Johnston  v.  Bennett.  3. 

V.  Cowan,  137. 

V.  Crawford.  217. 

T.  Morrow,  235. 

V.  Kailwaj'  Co.,  320. 
Joice  V.  Branson,  20S,  210. 
Jolly  V.  Single,  44. 
Jones  V.  Boyce,  60. 

V.  Call,  74. 

V.  Chamberlain,  198. 

V.  George,  75,  249. 

v.  Gilmore.  49. 

V.  Hannovan,  11,  26,  359. 

V.  Horn,  186. 

T.  Just,  249. 

T.  Manufacturers'  Nat.  Bank,  155. 

V.  Marshall,  225. 

V.  Matthews,  208. 

T.  National  Printing  Co.,  00. 

v.  Railway  Co.,  13. 

V.  Reg.,  135. 

T.  St.  Louis  R.  Co.,  13, 

V.  Tui-pin,  208. 
Jordan  v.  Gillen,  3. 

V.  Lewis,  131. 

V.  Middlesex  R.  Co.,  71. 
Joseph  Schlitz  Brewing  Co.  v.  Comp- 

ton,  83. 
Joshua  Barker,  The,  253. 
Joy  V.  Bitzer.  43. 
J. 's.  Keator  Lumber  Co.  v.  St.  Croix 

Boom  Corp.,  13. 
Judd  V.  Dike,  153. 
Juillard  v.  Greenman.  195. 
Jutte  V.  Hughes.  362. 


K 


Kadish  v.  Young,  239. 

KalckhofC  v.  Zoehrlaut,  181. 

Kaley  v.  Shed,  114. 

Kankakee  &  S.  R.  Co.  v.  Horan,  69. 

Kansas  City,   Ft.   S.   &  M.   R.   Co.  v. 

Daughtry,  305. 
Kansas  City  Hotel  Co.  v.  Sauer,  90. 
Kansas  City.  M.  &  B.  R.  Co.  v.  Riley, 
261. 
V.  Sanders,  304. 


Kansas  Pac.    Ry.    Co.   v.   Cutter,  302, 
307,  343. 

V.  Mihlmau,  81,  84,  85. 
Kuntzler  v.  Grant,  378. 
Kauffman  v.  Babeock,  72. 
Kavanaugh  v.  City  of  Janesville,  234. 
Kearney  v.  Fitzgerald,  90. 
Keck  V.  Bieber,  80,  139. 
Koeble  v.  Keeble,  I3(i.  137,  140. 
Keeler  v.  Wood,  "JO.  369. 
Keeuan  v.  Cavanaui;li.  :!6. 
Keene  v.  Keene,  147,  If.'t. 

V.  Lizardi,  217. 
Keenholts  v.  Becker,  78. 
Kehrig  v.  Peters,  217. 
Keil  V.  Gas  Co.,  219. 
Keirnan  v.  Ileatou,  215. 
Keith's  Ex'r  v.  Iliukston,  59. 
Keller  v.  Railroad  Co.,  345. 

V.  Strasberger,  240. 
Kelley  v.  Bank,  221. 

V.  HiiThfield,  377,  379. 

V.  Railroad  Co..  304,  307,  314.  350. 

V.  Riley,  374. 

V.  Town  of  Fond  du  Lac,  47. 
Kellogg  V.  Hickok,  155. 

V.  Lavender,  170. 

V.  Malin,  370. 

V.  Railroad  Co.,  342. 

V.  Sweeney,  197. 
Kelly  V.  Railway  Co.,  340. 

V.  Reufro,  377. 

V.  Rogers.  87.  89. 
Kelsey  v.  Mui-phy,  157. 
Kemble  v.  Farren.  125.  139. 
Kemp  V.  Knickerbocker  Ice  Co.,  124. 
Kempner  v.  Cohu,  364. 
Kendall  v.  City  of  Albia,  95,  100,  105. 

V.  Stone,  202. 
Kendrick  v.  MeCrary,  100. 
Kennedy  v.  Railroad  Co.,  212,  232. 

V.  Strong,  149,  185. 

V.  Whitwell,  163,  186,  194,  246. 
V.  Woods,  222. 
Kenney  v.  Railroad  Co..  148,  349,  350. 
Kennison  v.  Taylor,  ^XK 
Kennon  v.  Gilmer,  95,  2.34. 
Kenny  v.  Collier,  26,  74. 
Kenrig  v.  Eggleston,  38. 
Kent  V.  Bown,  171. 
V.  Ginter,  187. 
V.  Railroad  Co.,  253. 


CASES   CITED. 


407 


[The  figures  refer  to  pages.] 


Keatucky  Cent.  R.  Co.  v.  Gastiueau's 

Adm'r,  305. 
Kenyon  v.  Cameron,  208. 

V.  Telegraph  Co.,  280. 
Kerr  v.  Haverstick,  170. 
Kester  v.  Telegraph  Co.,  104. 
Kid  V.  Mitchell,  194. 
Kidder  v.  Barker,  31. 

V.  Oxford,  167. 
Kiene  v.  Ruff,  17. 
Kiff  V.  Youmans.  109,  211. 
Kilbonrn  v.  Thompson,  210,  211,  231. 
Kille  V.  Ege,  353. 
Kilpatrick  v.  Haley,  217. 
Kimball  v.  Bryant,  3G7. 

V.  Holmes,  94,  97. 
Kimel  v.  Kimel.  362. 
Kimes  v.  St.  Louis,  I.  M.  &  S,  Ry.  Co. 

148. 
Kimmel  v.  Burns,  170. 
King  V.  Fowlei,  359. 

V.  Ham,  186. 

V.  Howard.  234. 

V.  Little.  355. 

V.  Phillips,   150. 

V.  Richards,  19. 

V.  Root,  202,  214. 

V.  Shepherd,  253. 

V.  Steiren,  67. 
Kingsbui-y  v.  Westfall,  117. 
Kinney  v.  Folkerts.  95. 
Kirkman  v.  Vanlier,  155. 
Kitchen  v.  Bank,  154. 
Klanowski  v.  Railway  Co.,  323. 
Klepsch  V.  Donald,  304,  305. 
Klewin  v.  Bauman,  214. 
Klingman  v.  Holmes,  215. 
Klock  V.  Robinson,  156. 
Klopfer  V.  Bromme,  216. 
Klumph  V.  Dunn,  113. 
Knapp  V.  Maltby,  134.  136,  137. 
Knettle  v.  Crou.se,  175. 
Knickerbocker  Ins.  Co.  v.  Gould,  153. 
Kniffen  v.  McConnell,  373-376. 
Knight  V.  Carriage  Co.,  119. 

V.  Egerton,  230. 
Knowles  v.  Railroad  Co.,  208,  210,  214. 

V.  Steele,  31,  365. 
Knowlton  v.  Mackay,  136. 
Knox  V.  Jones,  148. 

V.  Lee,  195. 
Koch  V.  Investment  Co.,  359. 
Koeltz  V.  Bleckman,  235. 


Koeuigs  Y.  Jung,  215,  360. 
Koerner  v.  Oberly.  96. 
Koestenbader  v.  Peirce,  370. 
Kohler  v.  Smith.  169. 
Kolb  V.  Bankhead,  211,  358. 

V.  O'Brien,  231. 
Koons  V.  Miller,  148. 
Koosorowska  v.  Glasser,  342. 
Kopp  V.  Railroad  Co.,  359. 
Korrady  v.  Railway  Co.,  349,  350. 
Koshkonoug  v.  Burton,  173. 
Kountz  V.  Brown,  211. 

V.  Kirkpatrick,  180,  242. 
Kribs  V.  Jones,  242. 
Kroener  v.  Railroad  Co.,  232. 
Krohn  v.  Oechs,  253. 
Krom  V.  Levy,  75. 
Krug  V.  Ward,  91. 
Krumm  v.  Beach.  366. 
Kurtz  V.  Frank,  102,  377. 

V.  Sponable,  141. 


La  Amistad  de  Rues,  72. 
Ladd  v.  Arkell,  198. 

V.  Foster,  304. 
Laflin  v.  Willard,  25,  28. 
Laird  v.  Pim,  238. 
Lake  v.  Merrill,  221. 
Lake  Erie  &  AV.  R.  Co.  v.  Christison, 
97. 

V.  Fix,  97,  106,  261,  263. 

v.  Griffin,  118. 

V.  Mugg,  312.  313,  335. 
Lakeman  v.  Griunell,  253. 
Laker  v.  Damon,  64. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Frantz. 
71,  92. 

V.  Parker,  344. 

V.  Prentice,  219,  220. 

V.  Rosenzweig,  20S.  218,  219. 

V.  Sunderland,  324. 
Lambert  v.  Craig,  234. 

V.  Estes,  368. 
Lamming  v.  Galuslia,  22. 
Lamphear  v.  Budciiigham,  307. 
Lampman  v.   Cochran,   125,   136,   140, 

142. 
Lanahau  v.  Ward,  170,  174. 
Landa  v.  Obcrt,  89. 
Laudsbergor  v.  Telegraph  ('o.,  292. 


408 


CASES   CITEE. 


[The  ligiu-es  refer  lo  pa:?os.] 


Lane  v.  Atlantic  Works,  3U. 
Langdon  v.  Town  of  Castleton,  173. 
Lange  v.  Wagner,  44. 
Langford  v.  Owsley,  SI. 
Langston  v.  Kailroad  Co.,  109,  173. 
Lankins  v.  Terwilliger,  15. 
Lannen  v.  Albany  Gaslight  Co.,  45. 
Lansing  v.  Dodd,  139. 

V.  Stone,  22. 
Lantz  V.  Frey,  221,  222. 
Lanusse  v.  Barker,  19S. 
Laper  v.  Telegraph  Co.,  103. 
Lapleine  v.  Steamship  Co.,  37. 
Lara  way  v.  Perkins,  227. 
Larios  v.  Gurety,  43,  48. 
Larmon  v.  District  of  Columbia,  95. 
Larned  v.  Buthntou,  113. 
Larrabee  v.  Tribune  Co.,  112. 
Larson  v.  Chase,  101. 
Larwell  v.  Stevens,  3.33. 
Lash  V.  Lambert,  155. 
Latham  v.  Brown,  181. 

V.  Darling,  170. 
Lathers  v.  Wyman,  36. 
Latimer  v.  Hotter,  119. 
Laurea  v.  Bernauer,  134. 
Lavender  v.  Hudgens,  98. 
Lavery  v.  Crooke,  100,  212,  215. 
Lawless  v.  Collier's  Ex'rs,  368. 
Lawrence  v.  Birney,  328. 

V.  Cooke,  373. 

V.  Cowles,  141,  17L 

V.  Hagerman,  91. 

V.  Jenkins,  43. 

V.  Maxwell,  191. 

V.  Railroad  Co.,  95. 

T.  Rice,  25,  28. 
Lawrence  R.  Co.  v.  Cobb,  166. 
Lawson  v.  Raihvay  Co.,  71,  312. 
Layton  v.  Butler,  356. 
Lazarus  v   Ely,  114. 
Lea  V.  Whitaker,  138. 
Learned  v.  Castle,  363. 
Leary  v.  Laflin,  136. 
Leatherberry  v.  Odell,  67. 
Leavitt  v.  Cutler,  374,  376,  379. 
Le  Blanche  v.  Railroad  Co.,  66,  260. 
Le  Branthwait  v.  Halscy,  155. 
Lee  V.  Mathews,  185. 

V.  Riley,  43. 

V.  Wilcocks,  198. 
Leeds  v.  Cook,  378. 

V.  Metropolitan  Gaslight  Co.,  70. 


Leffingwell  v.  Elliott,  90,  309, 

Legge  V.  Harlock,  135. 

Leggett  V.  Insurance  Co.,  130. 

Le  Grange  v.  Hamilton,  155. 

Lehigh  Iron  Co  v.  Rupp,  308,  320,  330. 

Lehman  v.  City  of  Brooklyn,  321,  349. 

v.  Railroad  Co.,  94. 
Iceland  v.  Tousey,  222. 
Leutz  V.  Choteau,  76. 
Leonard  v.  New  York,  etc.,  T.  Co.,  61. 

v.  Telegraph  Co.,  68,  69,  273,  294. 

V.  Villars,  174. 
Le  Peintur  v.  Southeastern  Ry.  Co.,  5. 
Lesson  v.  Smith,  235. 
Letcher  v.  Woodson,  149. 
Lett  V.  Railway  Co.,  310,  317. 
Leucker  v.  Steilen,  100. 
Levitzky  v.  Canning,  90. 
Lewis  V.  Flint  &  P.  M.  Ry.,  45. 

v.  Paschal's  Adm'r,  174. 

V.  Peake,  2.50. 

V.  Railroad  Co.,  19.5. 

V.  Rountree.  60,  149. 

V.  Small,  174. 

V.  Walter.  112. 
Lick  V.  Faulkner,  195. 
Lienkauf  v.  Morris,  211,  217. 
Liermann  v.  Railway  Co.,  315, 
Lightner  v.  Menzel,  135. 
Lillard  v.  Whitaker,  ISO, 
Lillie  V.  Lillie,  90. 
Liuam  v.  Reeves,  ISO. 
Lincoln  v.  Claflin,  107. 

V.  Saratogi  &  S.  R.  Co.,  72. 
Lindsay  v.  Anesley.  137. 
Linsley  v.  Bushnell,  89,  207,  211. 
Linton  v.  Hurley,  3. 
Linville  v.  Black,  ISO. 
Lipe  V.  Eisenlerd,  100. 
Little  V.  Banks,  130,  154. 

V.  Railroad  Co.,  30,  38,  56. 

V.  Stauback,  17. 
Littlejohn  v.  Wilcox,  89. 
Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Lov- 

erett,  339. 
Little  Rock  &  Ft.  S.  Ry.  Co.  v.  Barker, 
302,  308,  319,  323,  324,  320,  347. 

V.  Dean,  98. 

V,  Voss,  332. 
Littlewood  v.  Mayor,  etc..  299. 
Lively,  The,  72. 
Livei'more  v.  Northrup,  115. 
IJvingston  v.  Burroughs,  110,  211, 


CASES   CITED. 


409 


[The  figures  refer  tp  pages.] 


Xiivingston  v.  Miller,  161. 
Llewellyn  v    Rutherford,  74,  1S2. 
Lobdell  V.  Stowell,  191. 
Lockett  V.  Railway  Co.,  362. 
Lockwood  V.  Onion,  220. 

V.  Railroad  Co.,  315. 
Loeb  V.  Flash,  193. 
Logan  v.  Railroad  Co.,  263. 
Loker  v.  Damon,  65,  69. 
Lombard  v.  Batehelder,  209. 

V.  Lennox,  99. 

V.  Railroad  Co.,  235. 
Long  V.  Booe,  100. 

V.  Bowring,  112. 

V,  Clapp,  44. 

V,  Lamkin,  117. 

V.  Morrison.  303. 
Longworth  v.  Askren,  131. 

T.  Mitchell,  196. 
Loomis  V.  Wadhams,  364. 
Lord  Y.  Gaddis,  139. 

V.  Manufacturing  Co.,  82. 

V.  Mayoi.    etc.,    of    City    of    New 
York,  157. 
Lord  Towusend  v.  Hughes,  233. 
Losee  v.  Buchanan,  22. 
Lothrop  V.  Adams.  112. 
Louder  v.  Hinson.  210,  214. 
Loudon  V.  Taxing  Dist.,  144. 
Loughran  v.  City  of  Des  Moines,  361, 

362. 
Louis  V.  The  Buckeye,  253. 
Louisville,  C.  &  L.  R.  Co.  v.  Mahony's 

Adm'x.  305,  339. 
Louisville  Gas  Co.  v.  Gutenkuntz,  45. 
Louisville,  N.  A.  &  C.  Ry.  Co.  v.  Buck. 
350. 

V.  Falvey,  37.  6S. 

V.  .Tones,  37. 

V.  Lucas,  51. 

V.  Power,  38. 

V.  Rush,  303,  324. 

V.  Snyder,  38. 

V.  Sparks,  358. 

V.  Sumuer,  38. 

V.  Wolfe,  219. 

V.  Wood,  37. 
Louisville,  N.  &  G.  S.  R.  Co.  v.  Gniiian, 

208. 
Louisville  &  N.  R.  Co.  v.  BaHard.  208, 
210,  218. 

V.  Brooks'  Adm'.x,  212,  235,  305. 

V.  Burke,  307. 


Louisville  &  N.  R.  Co.  v.  Conley,  307. 

v.  Foley,  232. 

v.  Garrett,  218. 

V.  Greer,  214. 

v.  Howard,  307. 

V.  Law,  232. 

V.  Mason,  254. 

V.  Northiugton,  37. 

V.  Shivell's  Adm'r,  305. 

V.  Stacker,  308. 

V.  Survant,  232. 

V.  Trammell,  314. 

V.  Wallace,  153. 

V.  Whitman,  98,  105,  106. 
Lowe  V.  Peers,  134. 

V.  Waller,  145. 

V.  Wing,  120. 
Lowell  V.  Boston  &  L.  R.  Co.,  91. 

V.  Parker,  119. 
Lowenstein  v.  Chappell,  36. 

V.  Monroe,  47,  90. 
Lowery  v.  Rowland,  358. 

V.  Telegraph  Co..  283. 
Loweth  V.  Smith,  85. 
Lowndes  v,  Collens,  147. 
Loyd  v.  Capps,  365. 
Lucas  V.  Flinn,  93,  96. 

V.  Railroad  Co.,  6,  219. 

V.  Trumbull,  116. 

V.  Wattles,  165. 
Luce  V.  Hoisington,  76. 

V.  Insurance  Co.,  50. 
Luck  V.  City  of  Ripon,  71. 
Ludlow  V.  Village  of  Yonkers,  360. 
Ludwick  V.  Huntzinger,  169. 
Lueck  V.  Heisler,  214. 
Lund  V.  City  of  New  Bedford,  27. 
Luusford  V.  Dietrich,  93,  98. 

V.  Walker,  96. 
Lunt  V.  Philbrick,  99,  106. 

V.  Wreun,  89. 
Luse  V.  Jones.  34.  92. 
Lustig  V.  Railroad  Co.,  345. 
Luther  v.  Wiiinisimniet  Co.,  116,  357. 
Lyle  V.  BarkiT,  119. 
Lyles  V.  Lyles'  Ex'rs,  199. 
Lyman  v.  Rabcock,  139. 
Lynch  v.  Kniglit.  94,  !)!).  101. 
Lynde  v.  Thompson,  134,  136. 
Lynn  Gas  &   Ll,?ctric  Co.   v.   Merldon 

Fm'c  Ins.  Co.,  44. 
Lyon  v.  Bortrnm.  217. 

V.  Gorinloy,  185. 


410 


CASES   CITED. 


[The  figtsres  refor  to  pnsos.l 


Lyons  v.  Merrick,  43. 

Lyon's  Adiu'r  v.  Railroad  Co.,  349. 

Lytton  V.  Baird,  91. 


M 


McAdory  v.   Louisville  &   N.   R.  Co., 

335. 
McAfee  v.  Crofford,  43. 
McAlister  v.  Railroad  Co.,  49. 
McAllen   v.  Telegraph  Co.,   105,   281, 

290. 
McAllister  v.  Clement,  30. 

V.  Reab,  148. 
McAneany  v.  Jewett,  11. 
McArthur  v.  Barnes,  213. 
McBride  V.  McLaughlin,  211. 
McCabe  v.  Morehead,  215. 
McCafferty  v.  Griswold,  305. 
McCall  V.  McDowell,  98,  295. 
McCardle  v.  McGinley,  91. 
McCarthy  v.  De  Armit,  209,  214. 

V.  Niskern,  208,  211. 
McCarty  v.  Quimby,  104. 
McClanahan  v.  Porter,  350, 
McClaunahan  v.  Smith,  222. 
McClendon  v.  Wells,  213. 
McColl  V.  Telegraph  Co.,  283,  292. 
McCollum  V.  Seward,  101. 
McConnel  v.  Kibbe,  20. 
McCormick  v.  Hamilton.  238. 

V.  Railroad  Co.,  110,  102,  164,  105. 

V.  Showalter,  300. 

V.  Vanatta,  250. 
McCoy  V.  Railroad  Co.,  219. 

V.  Trucks,  100. 
McCrubb  v.  Bray,  355. 
McCuUough  V.  [Manning,  139. 
McDaniel  v.  Crabtree,  75,  90. 

V.  Needham,  110. 

V.  Parks,  07. 
McDermid  v.  Redpath,  243. 
McDonald  v.  City  of  Red  Wing,  14. 

V.  Hodge,  198. 

V.  North,  104. 

V.  Norton,  215. 

V.  Scaife,  104,  215. 

V.  Snelling,  47. 

V.  Unaka  Timber  Co.,  179. 

V.  Walter,  229,  234. 
McDougald  v.  Coward.  99. 
McDougall  V.  Walling,  3. 


McDowell  V.  The  France,  232. 

V.  Railroad  Co.,  298. 
Mace  V.  Ramsey,  70. 

V.  Reed,  218. 
McElroy  v.  Goble,  27. 
McFadden  v.  Hopkins,  120. 
McGovern  v.  Railroad  Co.,  298,  319. 
McGowan  v.  Steel  Co.,  302,  300. 
McGown  V.  Railroad  Co.,  302,  348. 
McGrath  v.  Gegner.  242. 
McGi'ew  V.  Harmon,  121. 
McGuckin  v.  Milbank,  371. 
McGuftey  v.  Humes,  370. 
McGuinness  v.  Whalen,  306. 
McGuire  v.  Bloomiugdale,  14. 

V.  Grant,  359. 
McHenry  v.  Marr,  371. 
McHose  V.  Fulmer,  38,  00,  60,  243,  244^ 
Mcllvaine  v.  Wilkins,  149. 
Mcluhill  V.  Odell,  190. 
Mclnnis  v.  Lyman,  307. 
:\IcInroy  v.  Dyer,  117,  106. 
Mclntire  v.  Clark,  221. 
Mcintosh  V.  Lee,  30. 
Mclntyre  v.  Giblin,  90. 

V.  Railroad  Co.,  20,  345,  .347. 

V.   Sholty.  208,  210. 
MacKay  v.  Railroad  Co.,  201,  202. 

V.  Telegraph  Co.,  283,  292. 

V.  W.  U.  Tel.  Co.,  59. 
McKee  v.  Judd,  3. 
McKeever  v.  Railroad  Co.,  303. 
McKeigue  v.   City  of  Janesville,  339^ 

340. 
McKenney  v.  Haines,  101. 
McKensie  v.  Farrell,  222. 
McKercher  v.  Curtis,  242. 
Mackey  v.  Harmon,  370. 
McKim  V.  Bartlett,  27. 

Y.  Blake,  157. 
McKinley  v.  Railroad  Co.,  71,  91,  97^ 

105. 
McKinnon  v.  McEwan,  75. 

V.  Penson,  19. 
McKnight  v.  Dunlop,  102. 

V.  Ratcliff,  77. 
McLean  County  Coal  Co.  v.  Long,  116^ 

359. 
McLees  v.  Felt,  222. 
McLendon  v.  Commissioners,  173. 
McLeod  V.  Boulton,  17. 
McLimans  v.  City  of  Lancaster,  157^ 
McMahau  v.  Bowe,  353. 


CASES   CITED. 


411 


[The  figures  refer  to  pages.] 


McMahon  v.  Field,  25S. 

Y.  Railroad  Co.,  'Jo,  lGO-162. 

McMaster  v.  State,  1G2. 

McMicbael  v.  Masou,  114. 

McMillan  v.  Brick  Works,  95. 

McMuis  V.  Lyman,  116. 

McNair  v.  Comptou,  365. 

McNamara  v.  King,  202,  212,  214, 
V.  Village  of  Clintonville,  37,  71. 

M'Neill  V.  Ileid,  75. 

McNitt  V.  Clark,   131. 

Macomber  v.  Dimliam,  1G9. 

Macon  Co.  v.  Kodgers,  170. 

McPtiersou  v.  Ryan,  208,  213,  373,  375. 

McQueen  v.  Fulgliam,  99. 

MacVeagh  v.  Bailey,  47. 

McWliorter  v.  Sayre,  221. 

McWilliams  v.  Bragg,  208. 
V.  Hoban,  98,  214. 

Magdeburg  General  Ins.  Co.  v.  Paul- 
son, 254. 

Magee  v.  Holland,  100,  208,  215. 
V.  Lavell,  138. 

Magmer  v.  Reuk,  91. 

Magnin  v.  Diusmore,  252. 

Maher  v.  Winona  .&  St.  P.  R.  Co.,  30. 

Malaouey  v.  Belford,  99,  106,  108. 

Maliurin  v.  Bickford,  156. 

Main  v.  King,  134,  136. 

Mairs  v.  Association,  164,  166. 

Maitland  v.  (ioldney,   112. 

Maleverer  v.  Spinke,  14. 

Malone  v.  Hawley,  105. 
V.  Murpby,  98. 

Managers  of  the  Metropolitan  Asylum 
Dist.  V.  Hill,  13. 

Maner  v.  Wilson,  169. 

Maugalore,  The,  254. 

Mangan  v.  Foley,  306. 

Manice  v.  Brady,  137. 

Mann  v.  Cross,  174. 

Mann  Boudoir-Car  Co.  v.  Dupre,  37, 

Manning  v.  Fitch,  61. 
V.  Iron  Ore  Co.,  341. 

Mann's  Ex'rs  v.  Taylor,  156. 

Manuville   Co.  v.   City  of   Worcester, 
115. 

Mauslield  v.  New  York  Cent.  &.  H.  R. 
R.  Co.,  160,  161. 

Mansfield  Coal  iic  Coke  Co.  v.  McEn- 
ery,  312. 

Manter  v.  Trucsdale,  73. 


Manville  v.  Telegraph  Co.,  273,  286. 
Marble  v.  Chapin,  99. 

V.  City  of  Worcester,  47. 
Marburg  v.  Marburg,  198. 
March  v.  Walker,  302,  305. 
Mai-cy  V.  Fries,  116,  362. 
Margaret,  The,  v.  The  Connestoga,  88. 
Margraf  v.  Muir,  365. 
Maria,  The  Anna.  72. 
Mariani  v.  Dougherty,  347. 
Marietta  Iron  ^^■orks  v.  Lottimer,  170. 
Marine  Bank  v.  Fulton  Bank,  196. 
Markham  v.  Jaudon,  191. 

V.  Russell,  99. 
Marks  v.  Long  Island  R.  CJo.,  74. 
Marlow  v.  Lajeunesse,  73. 
Marquette,  H.  &  O.  R.  Co.  v.  Laugton,. 

253. 
Marr  v.  Telegraph  Co.,  286,  294. 
Marr's  Adm'r  v.  Prather,  198. 
Marsh  v.  Billings,  25. 

V.  Fraser,  162. 

V.  McPherson,  242. 
Marshall  v.  Anderson,  356. 

V.  Betner,  89,  206. 

V.  Dudley,  149. 

V.  Railroad  Co.,  253. 

V.  Schrieker,  148. 
Martin  v.  Franklin,  198. 

V.  Long,  367.  368. 

V.  Porter,  359. 

V.  State,  162. 

V.  Telegraph  Co.,  287. 
Martindale  v.  Smith,  240. 
Marzetti  v.  Williams,  26,  27. 
Mason  v.  Bertram,  333. 

V.  Calleuder,  171,  172. 

V.  Decker,  241. 

V.  Hawes,  89. 

V.  Railroad  Co..  299. 
Massuere  v.  Dickons,   17, 
Masters  v.  Town  of  Warren,  90, 
Masterton  v.  Mayor,  etc.,  of  Brooklyn^ 
73,  76,  238,  245. 

V.  Village  of  yit.  Vernon,  71,  74. 
Matheis  v.  Mazot,  100,  215. 
Mather  v.  American  Kxp,  Co,,  38,  59^ 
257. 

V,  Kinike,  197. 

V.  Rillstou,  2:!2. 
.Mathews  v.  Sliarp,  138. 

V.  Terry,  14, 


412 


CASES  CITED. 


[Tho  figures  rofor  to  pasos.] 


Matteson  v.  Railroad  Co.,  100,  105. 
Matthews  v.  Coe,  101. 

v.  Warner,  303,  305. 
Mattingly  v.  Boyd,  155. 

V.  Darwin,  222. 
Maury  v.  Coyle,  1G3. 
Maxwell  v.  Allen,  134. 

V.  Kennedy,  214. 
Mayer  v.  Duke,  114,  212,  236. 
V.  Frobe,  200,  206. 
V.  Reed,  155. 
Maynard  v.  Pease,  194. 
Mayo  V.  City  of  Springfield,  115,  116. 
Mayor,  etc.,  of  Jersey  City  v.  O'Cal- 

lagban,  150. 
Mayor,  etc.,  of  Nashville  v.  First  Nat. 

Bank,  173. 
Mead  v.  Stratton,  50. 
V.  Wheeler,  134,  154. 
V.  Young.   101. 
Meaders  v.  Gray,  170. 
Meagher  v.  Driscoll,  101,  360. 
Mears  v.  Cornwall,  119. 
Mechanics'  &  Traders'  Bank  of  Buf- 
falo V.  Farmers'  &  Mechanics'  Nat. 

Bank  of  Buffalo,  119. 
Meech  v.  Smith,  14S. 

V.  Stoner,  3. 
Meibus  v.  Dodge,  212. 
Meidel  v.  Anthis,  208. 
Melcher  v.  Scruggs,  97,  106. 
Melchert  v.  Telegraph  Co.,  276. 
Mellor  V.  Spateman,  26,  29. 
Melvin  v.  Chancy,  20. 
Memphis  &  C.  Packet  Co.  v.  Nagel, 

218. 
Memphis  &  C.  R.  Co.  v.  Whitfield,  95, 

100,  211. 
Memphis  &  L.  R.  R.   Co.  v.  Walker, 

181. 
Mendelsohn  v.  Anaheim  Lighter  Co., 

217,  219. 
iEenkens  v.  Menkens,  181. 
Mentzer  v.  Telegraph  Co.,  104. 
Mercer  v.  Vose,  161. 
Mercer's  Adm'r  v.  Beale,  156. 
Merest  v.  Harvey,  201. 
Merrick  v.  Brainard,  254. 

Y.  Wiltse,  249. 
Merrifield  v.  Longmire,  174. 
JMerrill  v.  Dibble,  31. 
V.  Men-ill,  i;!l. 


MoniU  V.  Telegraph  Co.,  280. 
INIorrllls  V.   Manufacturing  Co..  201. 
Merrimack  Manuf'g  Co.  v.  Quintard, 

243. 
Merrymau  v.  Criddle,  161. 
Moserve  v.  Ammidon,  198. 
Meshke  v.  Van  Doren,  189. 
Messmore  v.  New  York  Shot  &  Lead 

Co.,  60,  246. 
Metallic   Compression  Casting   Co.   v. 

Fitchburg  R.  Co.,  14. 
Metcalf  V.  Baker,  71. 
Metropolitan  Asylum  Dist.  v.  Hill,  15. 
Metropolitan  Bank  v.  Van  Dyck,  195. 
Metropolitan  El.  R.  Co.  v.  Kneeland, 

181. 
Mexican  Nat.  R.  Co.  v.  Finch,  347. 
Meyer  v.  Bohlfiug,  216. 

V.  Roosevelt,  195. 
Michaelson  v.  Deuisou,  14. 
Michigan    Land   e^   Iron   Co.   v.    Deer 

Lake  Co.,  358,  360. 
Michigan  S.  &  N.  I.  R.  Co.  v.  Caster, 

253. 
Mickles  v.  Hart,  28. 
Middlekauff  v.  Smith,  69,  75. 
Middleton  v.  Jerdee,  30. 
Mihills  Mauuf  g  Co.  v.  Day,  245. 
Milbank  v.  Dennistown,  166. 
Miles  v.  Edwards,  89. 

V.  Miller,  242. 
Millard  v.  Brown,  211. 
Miller  v.  Bank  of  New  Orleans,  155. 

V.  Burroughs,  169. 

v.  Edwards,  170. 

V.  Grice,  110, 

V.  Hall,  170. 

V.  Hayes,  378. 

V.  Jaunett,  186. 

V.  Kempner,  171. 

V.  Kirby,  209. 

V.  Mariner's  Church,  65. 

V.  Melchoer,  353. 

V.  Rosier,  373,  378. 

V.  Roy,  99. 

V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  50. 

V.  Trustees,  243. 

V.  Weeks,  222. 

V.  Wellman,  3.58. 
Mills  V.  Pox,  137. 

V.  Paul,  135. 

V.  Town  of  Jefferson,  173. 


CASES  CITED. 


413- 


[The  figures  refer  to  pages.] 


Milwaukee  &  M.  R.  Co.  v.  Finuey,  220. 
Milwaukee  &  St.  P.  Ry.  Co.  y.  Arms, 
G,  201.  207,  295. 

V.  Kellogg,  43,  50. 
Minard  v.  Beans,  144. 
Minor  v.  The  Picayune,  72. 
Miservey  v.  Snell,  369. 
Mississippi  Cent.  R.  Co.  v.  Kennedy, 

257. 
Mississippi  &  R.  R.  Boom  Co.  v.  Pat- 
terson, 178. 
Mississippi  &  T.  R.  Co.  v.  Ayres,  340. 
Missouri,  K.  &  T.  R.  Co.  v.  City  of  Ft. 

Scott,  76. 
Missouri  Pac.  Ry.  Co.  -v    Dwyer,  235. 

V.  Henry,  333. 

V,  Humes,  207. 

V.  Kaiser,  98. 

V.  Lee,  332,  344. 

y.  Lebmberg,  314. 

y.  Peay,  231. 

y.  Peregoy,  327,  339. 
Mitcbell  y.  Billingsley,  358. 

y.  Clarke,  47. 

V.  Cornell,  76. 

y.  Freedley,  355. 

y.  Jenkins,  20. 

y.  Mitcbell,  353. 

y.  Railway  Co.,  94,  318,  346 

y.  Stanley,  370. 
Mize  y.  Glenn,  26. 
Mizner  y.   Frazier,  73. 
Mobile  ct  M.  R.  Co.  y.  Ashcraft,  210. 

y.  Jurey,  164,  254. 
Mobley  x.  Dayega,  170. 
Moellering  y.  Eyans,  359. 
Mogul  S    S.  Co.  y.  McGregor,  14,  20. 
MoUie  Gibson  Cousol.  Mining  &  Mill- 
ing Co.  y    Sharp,  319. 
Mondel  y.  Steel,  247. 
Monmouth  Park  Ass'n  y.  Wallis  Iron 
Works,  135. 

V.  Warren,  125. 
Monnett  x.  Sturges,  170. 
Monroe  v.  Lattin,  76. 
Montana  R.  Co.  v.  Warren,  178. 
Montgoineiy  y.  Locke,  358. 

y.  Reed,  3()7. 

V.  Tutt,  174. 
Montgoin'M-y  ic  F.  R.  Co.  x.  Mallctte, 

\K>. 
.Monticc'llo,  Tlif.  v.  Mollison,  118. 
Moody  V.  Whitney,  116,  163. 


Moore  y.  Aldrich.  185. 

y.  Colt,  136,  130. 

V.  Cross,  209,  210. 

y.  Dayis,  44. 

y.  Fleming,  198. 

y.  Hall,  81,  177. 

y.  Hopkins,  379. 

y-  Hylton,  131. 

y.  Patton,  162. 

y.  Railroad  Co.,  166. 

y.  Tracy,  222. 

y.  Voughton,  146. 
Moore's  Adm'r  y.  Minerva,  71. 
Morehouse  v.  Comstock,  247. 
Moreland  v.  Lawrence,  169. 
Morey  v.  Association,  113. 

y.  Gaslight  Co.,  74. 
Morford  y.  Ambrose,  149. 
Morgan  v.  Curley,  96,  106. 

y.  Durfee,  306. 

V.  Gregg,  191. 

V.  Kidder,  115. 

V.  Negley,  59. 

y.  Railroad  Co.,  232. 

V.  Ross,  100. 

V.  Southern  Pac.  Co.,  303. 

y.  Varick,  353. 
Morley  v.  Railroad  Co.,  315. 
Morrell  y.  Insurance  Co.,  142. 
Morris  y.  McCoy,  132. 

y.  Phelps,  367. 

y.  Piatt,  15,  22. 

y.  Price,  89. 

V.  Railroad  Co.,  328. 
Morrison  x.  Dayis,  44. 

y.  Publishing  Co.,  112. 

V.  Robinson,  353,  354. 

y.  Steamship  Co.,  254,  255. 
Morse  y.  Sherman,  240. 
Morton  v.  Shoppeo,  101. 
Moseley  y.  Anderson,  184. 
Moses  y.  Rasin,  243. 

y.  Wallace,  365. 
Mote  y.  Railroad  Co.,  164. 
Mott  V.  Mott,  134. 
Moulton  V.  Inhabitants  of  Sanford,  85,. 

47. 
Mounson  v.  Redsliaw,  154. 
Miuintford  v.  Willcs,  146. 
.Mouse's  Case,  14.    ' 
Mowry  v.  liisho]),  172,  174. 

V.  Telograitii  ('o..  288. 
Meyer  v.  Gordon,  93,  97. 


414 


CASES  CITED. 


[The  li&m'es  refer  to  pages.] 


Mueller  v,  Kleine,  135. 
Muenchow  v.  Roberts,  3G4. 
Mulcahey  v.  Giveus,  50. 
Mulcairns  v.  Janesville,  315. 
Muldoou  V.  Rickey,  20. 
Muldowney  v.  Railroad  Co.,  95,  105. 
Mulford  V.  Clewell,  9U. 
Alullin  V.  Spangenberg,  212. 
Mundy  v.  Culver,  13G,  140. 
Munro  v.  Railroad  Co.,  303. 
Munroe  v.  Stickney,  359,  3(j2. 
Munsell  v.  Lewis,  3. 
Munson  v.  Munson,  115. 
Munter  v.  Baude,  209. 
Murdock  v.  Railroad  Co.,  258,  261. 
Murphy  v.  City  of  Fond  du  Lac,  11, 
26,  116. 

V.  Evaus,  222. 

V.  Hobbs,  117,  206,  216. 

V.  Larson,  211. 

V.  Railroad  Co.,  97,  219,  305,  307, 
309. 
Murray  v.  Buell,  231. 

V.  Burling,  117. 

V.  Stanton,  ISO. 

V.  Ware's  Adm'r,  162. 
Musgrave  v.  BeckendorfC,  187,  193. 
Muskegon   Curtain-Roll    Co.    v.    Key- 
stone Manuf'g  Co.,  239. 
Musselman  v.  Barker,  102. 
Myer  v.  Hart,  126. 

V.  Wheeler,  187. 
Myers  v.  Dresden,  17. 

V.  San  Francisco,  303. 
Mygatt  V.  Wilcox,  161. 
Mynning  v.  Railroad  Co.,  302. 


N 


Nagel  V.  Railway  Co.,  306,  323. 
Nagle  V.  MuUison.  212,  235. 
Nance  v.  Metcalf,  186. 
Nancy,  The  Amiable,  72. 
Nash  V.  Hamilton,  3. 

V.  Hennosilla,  140. 

V.  Sharpe,  71. 

V.  Towne,  241. 
Nashville  v.  Comar.  80. 
Nashville  &  C.  R.  Co.  v.  Prince,  307. 

V.  Smith,  307. 

V.  Stevens,  307. 


National  Copper  Co.  v.  Minnesota  Miu. 

Co.,  82,  84,  85. 
National  Provincial  Bank  v.  Marshall, 

142. 
Nauman  v.  Caldwell,  191. 
Needham  v.  Railroad  Co.,  302. 
Negley  v.  Cowell,  357. 
Negus  V.  Simpson,  163. 
Nebrbas  v.  Railroad  Co.,  303. 
Neiler  v.  Kelley,  193. 
Neiswanger  v.  Squier,  186. 
Nelson  v.  Elevating  Co.,  252. 

V.  Felder,  150,  156. 

V.  Railroad  Co.,  51,  317.  340,  347. 

V.  Village  of  AVest  Duluth,  359. 

V.  Wallace,  111. 
Nessle  v.  Reese,  135. 
Nettles  V.  Barnett,  3. 
Newark  Coal  Co.  v.  Upson,  74. 
Newcomb  v.  Wallace,  26. 
Newell  V.  Houlton,  171. 

V.  Keith,  162. 

V.  Smith,  164,  256. 

V.  Whitcher,  96,  214. 
New  England  Iron  Co.  v.  Gilbert  Ele- 
vated R.  Co.,  240. 
New  England  Mortg.  Sec.  Co.  v.  Va- 

der,  172. 
New  Haven  Steam-Boat  Co.  v.  Mayor. 

etc.,  44. 
New  Haven  ct  N.  Co.  v.  Haydeu,  90. 
New  Jersey  E.xp.  Co.  v.  Nichols,  71. 
Newman  v.  Otto,  222. 

V.  Stein,  99,  106,  208. 

V.  Telegraph  Co.,  104. 

V.  Wolfson,  135. 
New  Orleans  v.  Gaines,  353,  355. 
New  Orleans  Draining  Co.  v.  De  Li- 

zardi,  163. 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  All- 
britton,  89. 

V.  Hurst,  213,  236,  259. 
New  Orleans,  :\L  &  T.  R.  Co.  v.  South- 
em  &  A.  Tel.  Co.,  30. 
New   Orleans,  St.  L.   &  C.   R.   Co.   v. 

Burke,  212,  213,  235. 
Newson's  Adm'r  v.  Douglass,  153. 
Newsum  v.  Newsum,  36. 
Newton  v.  Kennerly.  169. 
New  York  Academy  of  Music  v.  Hack- 
ett,  59. 


CASES  CITED. 


415 


[The  figures  refer  to  pages.] 


New  York  Guaranty  &  Indemnity  Co. 

V.  Flynn,  1S5. 
New  York  Rubber  Co.  v.  Rotliery,  27. 
New  York  .Sc  C.  Miuiug  Syndicate  & 

Co.  V.  Fraser,  44. 
Nicholl  V.  Allen,  19. 
Nichols  V.  Eddy,  102. 

V.  Freeman,  304. 

V.  Walter,  807. 

V.  Winfrey,  300. 
Nicholson  t.  Couch,  229. 

v.  Rogers,  212,  214. 
Nickerson  v.  Jtiigelow,  347. 
Nielson  v.  Read,  137. 
Nightingale  v.  Scauuell,  210,  211. 
Niles  V.  Board.  172,  174. 
Nith,  The,  253. 
Nitro-Glycerine  Ca.se,  22. 
Niver  \\  Rossmau,  132,  139. 
Nixon  V.  Stilhvell,  358. 
Noble  V.  Allies  Maiiuf'g  Co.,  59. 
Nobles  V.  Bates,  135. 
Noonan  v.  Ilsley,  194,  199. 
Nordhaus  v.  Peterson,  210. 
Norman  v.  Rogers,  115. 

V.  Winch,  307. 
Normanuie,   The.  220. 
Norris  v.  City  of  Philadelphia,  157. 

V.  Hall,  155. 
Norristo^\n  v.  Moyer,  117. 
North  V.  .Johnson,  213. 

V.  Phillips,  193. 

V.  Turner,  3. 
Northam  v.  Hurley,  20. 
Northampton's  Case,  112. 
North  Chicago  R.    M.   Co.    v.   Morris- 

sey,  344. 
North  Chicago  St.   R.   Co.   v.   Brodie, 

349. 
Northern,   J.    &   G.    N.    R.   R.    Co.    v. 

AUbritton,  207. 
Northern  Transp.  Co.  v.  Sellick,  104. 
North  Hudson  County  R.  Co.  v.  Buo- 

raem,  107. 
North  Missouri  R.  Co.  v.  Akers,  257. 
North  Pennsylvania  R.  Co.  v.  Adaius, 
173. 

V.  Kirk,  330,  342. 
North    River    Meadow    Co.    v.    Chi'ist 

Church,  154. 
Northrup  v.  McGill,  114. 
Northwest  Traiisu.  0>.  V.  Bo.slou  Ma- 
rine Ins.  Co.,  35. 


Norton  v.  Babcock,  309. 

Nossaman  v.  Rickert,  90,  21G. 

Notara  v.  Henderson,  254. 

Nottmg  Hill,  The,  50. 

Nova  Scotia  Tel.  Co.  v.  American  TeL 

Co.,  197. 
Nowel  V.  Roake,  355. 
Noyes  v.  Phillips,  127,  134. 

V.  Ward,  89. 
Nutter  V.  Railroad  Co.,  229. 


o 


Oakes  v.  Richardson,  149. 
Oakland  Ry.  Co.  v.  Fielding,  93,  90. 
Oakley   Mills  Manuf'g  Co.   v.   Neese, 

228. 
Obermyer  v.  Nichols,  149. 
O'Brien  v.  Anuiston  IMpe-Works,  135. 

V.  Young,  150. 
O'CaUaghan  v.  Bode,  332. 
O'Couner  v.  Forster,  251,  252. 
O'Connor  v.  Railroad  Co.,  301. 

V.  Shannon.  358. 
O'Dounell  v.  Rosenberg,  135. 
O'Douoghue  v.  Carby,  181. 
Oelrichs  v.  Spain.  88,  89. 
Offutt  v.  Edwards.  87. 
Ogden  V.  Marshall,  252. 
Ogdon  V.  Gibbous,  225. 
Ogle  V.  Earl  Vane,  243. 
O'llanlan  v.  Railway  Co.,  179. 
Ohio  ii  M.  R.  Co.  v.  Heclit,  37. 

V.  Judy,  231. 

V.  Tindall,  303. 

V.  Voight,  :U4. 

V.  Wangelin,  349. 
Ohio  ifc  ^I.  R.  N.  Co.  V.  Dickerson,  117. 
Old  Colony  It.  Co.  v.  Evans,  306. 

V.  Miller,  107. 
Oldlield  V.  Railroad  Co.,  302,  307.  321. 
O'Leary  v.  Rowan.  220. 
Oliphint  V.  .Mansheld,  90. 
Oliver  v.  Town  of  La  Valle,  37,  40,  94. 
Ohiistead  v.  IJrusli.  27. 
Olson  V.  Sharpies,  242. 

V.  Solverson,  373. 
Omaha  &  CJrant  Smelting  &,  Reliuing 

Co.  V.  Tabor,  3.59. 
O'Malley  v.  Railway  Co..  :V27\. 
O'.Mara  v.  i::iilro;i<l  Co..  322. 
O'.Neall  v.  Bookman,  171. 


416 


CASES  CITED. 


[Tile  figures  refer  to  pages.] 


Opsahl  V.  .TiuUl,  331. 

Oriental   Bank    v.   Tremont   Ins.   Co., 

155. 
O'Kilej-  V.  McChesney,  2'J. 
Ormsby  v.  Mining  Co.,  181. 

V.  Vermont  Copper  Min.  Co.,  185. 
Orr  V.  Cburcliill,  141. 
Ortiz  V.  Xavarro,  373. 
Osborn  v.  Bank,  155. 
Osborne  v.  Gillott,  297,  299. 
Osborne  &  Co.  v.  Ebrliard,  91. 
Osbourne  v.  Hosier,  154. 
Osmun  V.  Winters,  108,  374. 
Ossulston  V.  Yarmouth,  172. 
Ottenot  V.  Railroad  Co.,  S3. 
Ottumwa  V.  Parks,  90,  91. 
Oursler  v.  Kailroad  Co.,  211. 
Outhouse  V.  Outhouse,  181. 
Overholt  v.  Vieths,  338. 
Overton  v.  Bolton,  170. 
Oviatt  V.  Pond,  1(>4. 
(Jwen  V.  Brockschmidt,  306,  309. 
Owens  v.  Kansas  City,  St.  J.  &  C.  B. 

R.  Co.,  37. 


I'acific  Exp.  Co.  v.  Black,  102. 

V.  Darnell,  49. 
Packard  v.  Slack,  44,  49. 
Paducah  Lumber  Co.  v.  Paducah  Wa- 
ter-Supply Co.,  38. 
Page  V.  Ford,  43. 

V.  Fowler,  185. 

V.  Newman,  145-147. 

V.  Wells,  366. 

V.  Wiple,  20. 
Paine  v.  Caswell,  171. 

V.  Railroad  Co.,  106,  263. 

V.  Sherwood,  243,  245. 
Palfrey  v.  Railroad  Co.,  298. 
Palmer  v.  Andrews,  378. 

V.  Crook,  108. 

V.  Gallup,  28. 

V.  Inhabitants  of  Andover,  47. 

V.  :Mill,  222. 

V.  Murray,  164. 

V.  Stockwell,  162. 

V.  Wylie,  222. 
Pana  v.  Bowler,  150,  173. 
Paposkey  v.  Munkwitz,  363. 
Parana.  The.  255.  2.56. 
Pardee  v.  Kanady,  240. 


Parham  v.  McMurray,  114. 

Parish  v.  Wheeler,  120. 

Park  V.  Detroit  Free  Press  Co.,  111. 

V.  Railway  Co.,  302. 

V.  Wiley,  153. 
Parke  v.  Frank,  229. 
Parker  v.  Davis,  195. 

V.  Griswold.  224. 

V.  Hutchins  n,  147. 

V.  Meadows,  68. 

V.  Monteith,  100. 

V.  Russell,  80. 

V.  Shackelford,  215. 

V.  Thompson,  150. 
Parkhurst   v.    Masteller,   93,   98,    106,. 

203,  207.  214. 
Parks  V.  City  of  Boston,  167. 

V.  Marshall,  198. 
Parks  V.  Morris  Axe  &  Tool  Co.,  250. 

V.  Telegraph  Co.,  272. 
Parmelee  v.  Lawrence,  148. 
Parrott  v.  Den,  223. 

V.  Ice  Co.,  165. 

v.  Railroad  Co.,  164. 
Parshall  v.  Minneapolis  &  St.  L.  Ry. 

Co.,  71. 
Parson  v.  Sexton,  247. 
Parsons  v.  Harper,  91,  98. 

V.  Railway  Co.,  306,  325,  344. 

V.  Sutton,  66,  67,  244. 
Paschal  v.  Owen,  315. 
Pasley  v.  Freeman,  8. 
Passenge  v.  Thorburn,  249. 
Passinger  v.  Thorburn,  75. 
Pastorius  v.  Fisher,  25. 
Patent  Brick  Co.  v.  Moore,  135. 
Patrick  v.  Colorado  Smelting  Co.,  25. 

V.  Greenaway,  29. 
Patten  v.  Libbey,  227. 

V.  Railway  Co.,  235. 
Patterson  v.  Ely,  222. 

V.  Stewart,  370. 

V.  Wallace,  302. 

V.  Westervelt,  28. 
Patton  V.  Garrett,  90,  206. 
Paul  V.  Dod,  240. 

V.  Frazier,  374. 

V.  Mayor,  etc.,  of  New  York,  154. 

V.  Slason,  17,  25. 
Panning  v.  Creagh's  Adm'r,  172. 
Paulmier  v.  Railroad  Co.,  333. 
Pauska  v.  Dans.  1.50.  151. 
Pavey  V.  Insurance  Co.,  234. 


CASES   CITED. 


417 


[The  figures  refer  to  pages.] 


Paxton  V.  Boyer,  15,  22. 
Payne  v.  Allen,  14. 

V.  Morgan's  L.  &  T.  R.  &  S.  S.  Co., 
75. 
Peace  River  Pbosphate   Go.   v.   Graf- 

flin,  245. 
Pearce  v,  Hennessy,  169. 

V.  Xeedliam,  lO'J. 
Pearsall  v.  Telegraph  Co.,  274,  275. 
Pearse  v.  Coaker,  355. 
Pearson  v.  Carr,  80. 

T.  Williams'  Adm'rs,  142. 
Pease  v.  Smith,  1(54. 
Peck  V.  Small,  208,  211,  214. 
Peckham  Iron  Co.  v.  Harper.  89,  207. 
Pegram  v.  Stortz,  97,  206. 
Peirce  v.  Rowe,  174. 
Peltz  V.  Eicliele,  74. 
Pendergast  v.  McCaslin,  355. 
Pendleton  St.  R.  Co.  v.  Rahmann,  234. 
Penley  v.  Watts,  371. 
Pennsylvania    Coal    Co.    v.    Nee,   323, 

325. 
Pennsylvania  Co.  v.  Bray,  98. 

V.  Keane,  338. 

V.  Lilly,  308,  319,  351. 

V,  Marion,  117. 

V.  Roney,  15. 
Pennsylvania  R.  Co.  v.  Adams,  330. 

V.  Bantom,  308,  319. 

V.  Butler.  302,  312. 

V.  Connell,  97,  106,  261,  263. 

V.  Dale,  71. 

V.  Goodman,  303,  317,  318. 

V.  Henderson,  307,  312,  323. 

V.  Keller,  330. 

V.  Kelly,  93,  96. 

V.  Ogier,  343,  344. 

V.  Rcicliert,  142. 

V.  Spicker,  97. 

V.  Titusville  <Jc  P.  P.   R.   Co.,  251, 
257. 

V.   Vandever,  344. 

V.  Wabash.  St.  L.  &  P.  R.  Co..  45. 

V.  Zebe,  302,  307,  308,  319,  326. 
Pennsylvania  S.   V.  R.  Co.  v.   Zimer, 

166. 
Pennsylvania  Tel.  Co.  v.  V'arnau,  312. 
Pennsylvania  &  O.  Canal  Co.  v.  Gra- 
ham, 71,  92,  105. 
Ponnypacker  v.  Jones,  75. 
Ponric-o  v.  Peiirice,  356. 
People  V.  Central  Pac.  R.  Co.,  112. 

LAW  DAM.— 27 


People  V.  County  of  New  York,  154. 

V.  Supervisors   of   Delaware,   161, 
162. 
Peoria  Bridge  Ass'n  v.  Loomis,  95. 
Peoria  M.  &  F.  Ins.  Co.  v.  Lewis,  153. 
Pepper  v.  Southern  Pac.  Co.,  303. 

V.  Telegraph  Co.,  287,  293. 
Peppercorn    v.    City    of    Black    River 

Falls,  117. 
Perham  v.  Coney,  117. 
Perkins  v.  Fouruiquet,  156. 

V.  Freeman,    114. 

y.  Lyman,  132,  135. 

V.  Murrs,  186. 

V.  Railroad  Co.,  218,  258. 

V.  Towle,  215. 
Perley  v.  Eastern  R.  Co.,  36. 
Perrott  v.  Shearer,  118. 
Perry  v.  Railway  Co.,  97. 

V.  Robinson,  230. 

v.  Smith,  199. 

V.  Taylor,  150,  169. 

y.  Washburn,  156. 
Perry  Co.  v.  Selma,  .M.  &  M.  R.  Co., 

156. 
Perzell  v.  Shook,  138. 
Peters  v.  Cooper,  238. 

V.  Stanway,  101. 
Peterson  v.  Knoble,  97. 
Petrie  v.  Railroad  Co..  ."WO,  833. 
Pettec  v.  Manufacturing  Co.,  7P. 
I'ettigrew  v.  Summers,  169. 
Pettis  v.  Bloomer,  135. 
Phelin  v.  Keudord.ne,  100. 
Phelps  v.  New  Haven  &  N.  Co.,  80. 

v.  Railroad  Co.,  313. 
Phenix    Ins.    Co.    v.    Continental    Ins. 

Co.,  142. 
I'iiiladelphia  Traction  Co.  v.  Orbauu, 

208,  210,  212,  218,  219,  235. 
Philadelphia,  W.  A:  B.  R.  Co.  v.  Hoe- 
dich,  263. 

v.  Larkiu,  208,  210,  214,  218. 

V.  Quigley,  214,  295. 
I'hiladolphia  A:  R.  R.  Co.  v.  Smith,  22. 
IMiill)rook  v.  lOaton,  246. 
Phillips  V.  Dickeisou,  51. 

V.  Dugan,  197. 

V.  lloyle,  !I9. 

V.   Ki'lly,  216. 

V.   London  &:  S.  W.  R.  Co.,  71. 

V.   Railway  Co.,  234. 

V.  Speyers,  185,  1U7. 


418 


CASES  CITEP. 


[The  figures  refer  t©  pages.] 


Phillips'  Appeal,  193. 
Phillpotts  V.  Evaus,  2.SS. 
IMiinuey  v.  Baldwin,  IG'J. 
I'hyfe  V.  llailioad  Co.,  31. 
I'iekard  v.  Collins,  'M'6. 
rickeus  V.  McCoy,  170. 
Pitkeriug  v.  Pulsifer,  U22. 
IMckert  v.  llugg,  194. 
Pickett  V.  Crook,  23G. 
Pierce  v.  Fuller,  135. 

V.  Getchell,  211. 

V.  Millay,  71.  91.  105. 

V.  Proprietors  of  Swau  Point  Ccm- 
etei-y,  101. 

V.  Spader,  198. 

V.  Waguer,  3G2. 

V.    louug,  13G. 
Pierro  v.  Railway  Co.,  77. 
Pierson  v.  Eagle  Screw  Co.,  S5^. 

T.  Finney,  221. 
Piester  v.  Piester,  171. 
Pike  V.  Dilling,  2oS,  214. 
Pindall  v.  Bank  of  Marietta,  174. 
Pineo  V.  Railroad  Co.,  34(j. 
Piukerton  v.  Railroad,  ISS,  194 
Piper  V.  Kingsbury.  59,  377. 
Pitcher  v.  Livingston,  3(J7,  368. 
I'ittsbiirg  Coal  Co.  v.  Foster,  75. 
Pittsburg,    C.    &    St.    L.    Ry.    Co.    v. 

Thompson,  118. 
Pittsburgh    Coal    Miu.    Co.    v.    Green- 
wood. 223. 
Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  De- 
win,  228. 

V.  Heck,  239. 

V.  Lyon,  210,  211. 

V.  Sponier,  93,  231. 
Pittsburgh,  S.  Ry.  Co.  v.  Taylor,  163, 

212,  235. 
Piatt  V.  Brown.  88,  213. 
Plumloigh  T.  Dawson,  31. 
Plummer  v.  Harbut,  211. 

V.  Penobscot  Lumbering  Ass'n,  69. 

V.  Rigdon,  364,  365. 

V.  Webb,  298. 
Polhemus  v.  Heiman,  247, 
Polk  V.  Fancher,  208. 
Pollard  V.  Porter,  26. 
PoUett  V.  Long,  357. 
I'ollitt  V.  Kerr,  357. 

V.  Long.  74. 
Pollock  V.  Colglazure,  197. 

V.  Gannt,  47,  217,  226. 


Polly  V.  McCall,  SO. 
Pomeroy  v.  Smith,  119. 
Pond  V.  Harris,  90. 

V.  MeiTitield,  26. 

V.  Railroad  Co.,  83. 
Pool  V.  Southern  Pac.  Co.,  312. 
Pope  V.  Barrett,  148. 
Poposkey  v.  Munkwitz,  69,  74. 
Porteous  v.  Hagel,  229. 
Porter  v.  Munger,  150,  151. 

V.  Pool,  249. 

V.  Railroad  Co.,  93,  95. 

V.  Soiler.  214,  217. 

V.  The  New  England,  260. 

V.  Travis,  366. 
Portis  V.  Merrill,  171. 
Postal  Tel.  Cable  Co.  v.  Lathrop,  286, 

290,  292.  293. 
Post  Pub.  Co.  V.  Hallam,  113. 
Potter  V.  McPherson,  133. 

V.  Mellen,  30. 

V.  Merchants'  Bank,  181. 

V.  Railroad  Co..  235,  302,  307,  324, 
327,  339,  347. 
Potts  V.  Telegra])li  Co..  103. 
Poulton  V.  Lattimore,  247. 
Powell  V.  Burroughs,  137 

V.  Salisbury,  43. 
Power  V.  Harlow,  100. 
Powers  V.  City  of  Council  Bluffs,  83. 
Pratt  V.  Pioneer  Press  Co.,  235. 

V.  Pond,  211.  212,  235. 
Prentiss  v.  Shaw,  109. 
Prerogative,  Case  of,  14. 
Prescott  V.  Truemau,  371. 
President,  etc.,  of  Baltimore  &  Y    T. 

R.  Co.  V.  Boone,  210,  214,  218. 
Press  Pub.  Co.  v.  McDonald,  113,  214. 
Preston  v.  Walker,  174. 
Price  V.  Green,  136. 

V.  Justrobe,  198. 

V.  Railway  Co.,  147. 
Pridgen  v.  Andrews,  170. 
Priestly  v.  Railroad  Co.,  75,  256. 
Prime  v.  Eastwood,  99. 
Primrose  v.  Telegraph  Co.,  291,  292. 
Priudie  v.  Haight,  109. 
Pritchard  v.  Hewitt,  233. 
Pritchet  v.  Boevey,  91. 
Probate  Court  v.  Slason,  27. 
Prosser  v.  Callis,  17. 

V.  .Jones,  38,  59. 
Provost  V.  Jackson,  303. 


CASES   CITED. 


419 


[The  figures  refer  to  paj?es.] 


Pruett  V.  Telegraph  Co.,  272. 
Pruitt  V.  Cox,  100. 
Priiyn  v.  City  of  Milwaukee,  170, 
Pujol  V   McKiulay,  161. 
Pullman  Co.  v.  McDonald,  102. 
Pullman  Palace-Car  Co.  v.  Barker,  37, 
258. 
V.  Fowler,  102. 
Pumpelly  v.  Plielps,  365,  366. 
Purcell  V.  Railway  Co.,  94. 
Purple  V.  Hudson  K.  K.  Co.,  3. 
Pursell  V.  Fry,  162. 
Putnam  v.  Glidden,  241. 
Putney  v.  Lapliam,  121. 
Pym   V.   Railroad   Co.,   316,   328,   334, 
335,  342,  347. 

Q 

■Queen,  The,  95. 

<iuigley  V.  Railroad  Co.,  97,  106,  206. 
Quin  V.  Moore,  26,  322,  349. 
Quinby  v.  Tl-ibuue  Co.,  110. 
Quincy  Canal  v.  Newcomb,  18. 
Quincy  Coal  Co.  v.  Hood,  348. 
<juinn  T.  Lloyd,  197. 

V.  Power,  345. 

V.  Railway  Co.,  208,  218. 

V.  Scott,  112. 

V.  Van  Pelt,  4. 


R 


Rabb  V.  Patterson,  353. 
Railroad  Co.  v.  Hutchins,  186. 

V.  Mitchell,  307. 

V.  Reeves,  44. 

V.  Whitton,  307. 
Rains  v.  Railway  Co.,  306,  308,  319. 
Rajuowski  v.  Railroad  Co.,  319,  323, 

340. 
Ralston  V.  The  State  Kights,  210. 
Ramsey  v.  Hurley,  181. 
Randall  v.  Carpenter,  90. 

V.  Greenhood,  148. 

V.  Rapor,  75,  249. 
Randolf  V.  Town  of  Bloomfleld,  8()2. 
Randon  v.  Barton,  194. 
Ransom  v.  Raihund  Co.,  95. 
Rash  V.  Jenne,  308. 
liatdiffe  v.  Evans,  17. 
Ratleree  v.  Chapman,  153,  163. 


Raupman  v.  City  of  Evansville,  89. 
Ravary  v.  Railway  Co.,  303. 
Rawley  v.  Gibbs,  164. 
Ray  V.  Jeffries,  229. 

V.  Light,  181. 
Rayburn  v.  Day,  148. 
Raymond  v.  Traffarn,  222. 
Raymond  Bros.  v.  Green,  89. 
Rajmor  V.  Nims,  210,  211. 
Rea  V.  Harrington,  99,  208,  211,  212, 
214. 

V.  Rea,  356. 
Red  V.  City  Council  of  Augusta,  74. 
Redden  v.  Gates.  216. 
Redding  v.  Godwin,  181. 
Redlield  v.  Redfield,  208,  210. 

v.  Ystalyfera  Iron  Co.,  155. 
Reece  v.  Knott,  156. 
Reed  v.  Clark.  102.  375,  376. 

V.  Davis,  360. 

V.  Ohio  6c  M.  Ry.  Co.,  177,  178. 

v.  Railroad  Co.,  167. 

V.  State,  83. 
Reeder  v.  Purdy.  209,  210,  214. 
Reese  v.  Rutherford,  150. 

V.  Telegraph  Co.,  103,  104. 
Reeves  v.  Stipp,  131,  171. 
Regan  v.  Railway  Co.,  348,  349. 
Reggio  v.  Braggiotti,  90,  249. 
Reilly  v.  Jones,  138. 
Reiudel  v.  Schell,  135. 
Reiter  v.  Morton,  75. 
Remelee  v.  Hall,  80. 
Roufro's  Adm'x  v.  Hughes,  117,  193. 
Reuihan  v.  Wright,  103. 
Ronkert  v.  Elliott,  213. 
Reuner  v.  Cautield,  51. 
Rensselaer  Glass  Factory  v.  Reid,  145, 

149. 
Repka  v.  Sergeant,  25. 
Republican  Pub.  Co.  v.  Conroy,  214. 

v.  Miner,  112. 

V.  Mosmau,  99,  112. 
Respublica  v.  Sparhawk,  14,  15. 
Rox  V.  Smith,  8. 
Reynolds  v.  Braithwalte,  360. 

V.  River  Co.,  (i9. 

V.  Shuler,  117. 
Rhea  v.  Railroad  Co.,  14. 
Rhemke  v.  Clinton,  149,  1S4. 
Rhode;;  v.  Baird,  ."W,  60. 

v.  Dunli.'ir,  :',{V.\. 


420 


CASES  CITED. 


[The  figures  refer  to  pa.ces.) 


llicc  V.  Mauley,  179. 

V.  Kice,  'JU. 

V.  Stone,  3. 

V.  Wliitmore,  75. 
Ricli  V.  Railroad  Co.,  8,  51. 

V.  Town  of  Seneca  Falls,  173. 
Richards  v.  Edick,  134.  3(50. 

V.  Gas  Co.,  151,  157,  IGU. 

V.  ^IcPherson,  109. 

V.  Marsliman,  141. 

V.  Rose,  234. 

V.  Sandford,  234. 
Richardson  v.  Cliynoweth,  GO,  Gl,  244. 

V.  Northrup,  75,  359. 

V.  Vermont  Cent.  R.  Co.,  13. 

V.  Woehler,  133. 
Rich  Grain  Distilling  Co.  v.  W.  U.  Tel. 

Co.,  273,  280. 
Richmond  v.  Bronson,  149,  179. 

v.  Railway  Co.,  330,  331. 

V.  Roberts,  373,  374. 

V.  Shickler,  213. 
Richmond  &  D.  R.   Co.  v.   Freeman, 
304. 

V.  Norment,  95. 
Richtmeyer  v.  Remsen,  3. 
Rickert  v.  Snyder,  3U.S-370. 
Ricketts  V.  Railway  Co.,  220. 
Riddle  v.  McGinnis,  100,  lOG. 
Ridenhour  v.  Railway  Co.,  91,  95. 
Riech  V.  Bolch,  49. 
Riewe  V.  McCormick,  20G. 
Riley  V.  Lee,  17. 

V.  Martin,  185, 

V.  Transit  Co.,  347. 
Rilling  V.  Thompson,  169. 
Rineer  v.  Collins,  305. 
Kinehart  v.  Olwine,  240. 
Riughouse  v.  Keener,  354,  355. 
Ripley  v.  Davis,  185. 
Rippey  v.  Miller,  208. 
Risley  v.  Andrew    Co.,  154. 
Rittenhousc   v.   Independent   hiue   of 

Telegraph.  274,  294. 
Roades  v.  Larson,  232. 
Roan  V.  Holmes,  356,  357. 
Robbins  v.  Cheek,  150. 

V.  Lincoln  Co.,  154. 

V.  Packard,  181. 

V.  Railroad  Co.,  234. 
Robel  V.  Railway  Co.,  324. 
Roberts  v.  Benjamin,  243. 

V.  Berdell,  181. 


Roberts  v.  Cole,  75. 

V.  Improvement  Co.,  355. 

V.  Mason,  89,  207,  210. 
Robertson  v.  Cornelsou,  95. 

V.  Lemon,  90. 
Robeson  v.  Whitesides,  130,  142. 
Robinett  v.  Morris'  Adm'rs,  221. 
Robinson  v.  Bakewell,  142. 

V.  Barrows,  163,  185. 

V.  Bland,  2,  140. 

V.  Burton,  207.  215. 

V.  Craver,  378. 

V.  Goings,  208.  218. 

v.  Hall,  197. 

V.  Harman,  3,  365. 

V.  Hartridge,  185. 

V.  Heard,  304. 

V.  Insurance  Co.,  149. 

V.  Kiunej-,  1G9. 

V.  Stewart,  162. 

V.  Town  of  Waupaca,  233. 

V.  Ti-ansportation  Co.,  164. 

V.  Weeks,  3. 
Robisou  V.  Rupert,  109. 
Robreeht  v.  Marliug's  Adm'r,  74. 
Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  Be- 

lauey,  319. 
Rockland  Water  Co.  v.  Tillson,  78,  79. 
Rockwood  V.  Allen,  24,  33. 
Rodgers  v.  Ferguson,  210. 
Rodocanachi  v.  Milburn,  252,  253,  258. 
Roeder  v.  Ormsby,  308. 
Rogers  v.  Bemus,  01,  75. 

V.  Henry,  213.  230. 

V.  Rajendro,  8. 

V.  Sample,  131. 

V.  Spence,  201. 

V.  West,  149. 

V.  Wilson,  110. 
Rolfe  V.  Peterson,  125. 
Rolin  V.  Steward,  27. 
Rollins  V.  Chalmers,  99. 
Romaine  v.  Van  Allen.  190. 
Rome  R.  Co.  v.  Sloan,  179. 
Root  V.  Lowndes,  78. 

V.  Sturdivant,  90,  203,  207,  214. 
Rooth  V.  Wilson   119. 
Roper  V.  Johnson,  243. 
Rose  V.  Belyea,  88. 

v.  Bozeman,   194,   198. 

V.  City  of  Bridgeport,  172-174. 

V,  Lewis,  181, 

V.  Miles,  301. 


CASES  CITED. 


421 


[The  figures  refer  to  pages.] 


Rose  V.  Post,  S9. 

V.  Railroad  Co.,  347. 

T.  Story,  212. 

V.  Wynn,  74. 
Rosenberg  v.  Weekes,  156. 
Rosen  tield  v.  Expi'ess  Co.,  254. 
Rosevelt  v.  Hanold,  222. 
Ross  V.  Leggett,   34,  91,  92,   98,   lOG, 
109,  20S. 

V.  Railway  Co.,  326. 

T.  Thompsou,  27. 
Rotb  y.  Smith,  110. 
Roughan  v.    Boston   &   L.   Block  Co., 

250. 
Routh  V.  Caron,  44. 
Rowan  v.  Lee,  221. 
Rowand  v.  Bellinger,  226. 
Rowe  T.  Johnson,  350. 
Rowley  v.  Gibbs,  149. 

V.  Railway  Co.,  310,  340. 
Royston  v.  Railroad  Co.,  44,  51. 
Rucker  v.  Athens  Manuf  g  Co.,  45. 
Ruest  V.  Railway  Co.,  303. 
Rufit"  V.  Jarrett,  248. 
Rushton  y.  Rowe,  155. 
Russ  y.  Telfener,  364. 
Russell  V.  Brown,  81,  84. 

y.  Buttertield,  120. 

y.  Chambers.  99,  100,  106. 

y.  Mayor,    etc.,    of    City    of    New 
York,  15. 

V.  Sunbury,  299. 

y.  Telegraph  Co.,  92,  104. 

y.  Walker,  90. 
Rutan  y.  Ludlam,  249. 
Rnthyen  Woolen  Manufg  Co.  v.  Great 

Western  R.  Co.,  44. 
Rutland  &  W.  R.  Co.  y.  Bank  of  Mid- 

dlebury,  115. 
Rutter  V.  Collins,  373. 
Rybum  y.  Piyor,  185. 
Ryerson  v.  Chapman,  90,  368,  369. 
Rylands  v.  Fletcher,  13. 


S 


Sabine  &  E.  T.  R.  Co.  v.  Ewing.  232. 
Sackett  v.  Sackett,  .3(j3. 
Sadler  v.  Beau.  181. 
SaCford  v.  Drew,  3.50. 
Saintcr  v.  Fergu.son,  142. 


St.  Helen's  Smelting  Co.  y.  Tipping, 

28,  363. 
St.  John  V.  Mayor,  etc.,  362. 

y.  O'Connel,  181. 
St.  Joseph  &  W.  R.   Co.  y.  Wheeler, 

327. 
St.   Louis,  A.  &  T.  Ry.  Co.   v.  John- 
ston, 312,  314,  334. 
St.  Louis,  I.  M.  &.  S.  Ry.  Co.  v.  Bigs, 
119. 

y.     Dayis,  327. 

V.  Freeman,  319,  326. 

V.  Hall,  231,  234. 

V.  Maddry,  316. 

V.  Iseedham,  337,  340. 

V.  Sweet,  312,  316,  347. 
St.   Louis   &   S.   F.   Ry.   Co.   v.   Shoe- 
maker, 140. 
St.  Ores  y.  McGlashen,  207. 
St.  Peter's  Church  y.  Beach,  211. 
Salado  College  y.  Davis,  88. 
Saldana  y.  Railroad  Co.,  9.j. 
Salladay  y.   Town  of  Dodgeyille,  64, 

68. 
Salter  y.  Railroad  Co.,  341. 
Salton  V.  Bragg,  146. 
Salyin  v.  Coal  Co.,  8. 
Sammis  v.  Clai-k,  148. 
Sampson  v.  Smith,  14. 

V.  Warner,  153. 
Samuels  y.  Association,  99. 
San  Antonio  St.  Ry.  Co.  y.  Mechler, 
327. 

y.  Watzlazick,  347. 
San  Antonio  &  A.  P.  Ry.  Co.  v.  Ben- 
nett, 340. 

V.  Long,  341. 
Sanborn  y.  Benedict,  239. 
Sandback  v.  Quigley,  356. 
Sauderlin  y.  Willis,  'Mr,. 
Sanders  y.  Railway  Co.,  150. 

V.  Stuart,  292. 

V.  Vance,  163,  185. 
Sanderson  v.  Coal  Co.,  81. 
Sanford  v.  Cloud,  366. 

V.  First  Nat.  Bank  of  Belle  Plaine. 
124. 

y.  Rowley,  113. 

y.   Willetts,  89. 
Sangamon  &  M.  R.  Co.  v.  Henry,  252. 
Sapjt  V.   Kaihvay  Co.,  210. 
Sarah  Ann,  The,  3. 


4-22 


CASES   CITED. 


[The  Ggxires  refer  to  pases.] 


Satchwell  v.  "Williams,  70,  74. 
Sauer  v.  Schulenberg,  102. 
Saunders  v.  Clark,  179. 
Sauter  v.  Railroad  Co.,  340. 
Savannali,  F.  &  W.  R.  Co.  v.  Davis,  81. 

V.  Harper.  23."). 

V.  Holland,  225. 

V.  Frilcliard,  44. 
Savannah  cVc  C.  K.  Co.  v.  Callahan,  133, 

185,  161. 
Savannah  &  M.  R.  Co.  v.  Shearer,  304. 
Savannah  &  O.  C.  Co.  v.  Bourquin,  81. 
Sawyer  v.  Bennett,  111. 

V.  Sauer,  217. 
Saxon  V.  Castle,  20. 
Sayles  v.  Bemis,  30. 
Sayre  v.  Austin,  154. 

V.  Sayre,  lOS. 
Schadewald  v.  Railway  Co.,  315. 
Schaffner  v.  Ehrman,  232. 
Schalk  V.  Kingsley,  120. 
Schaub  V.  Railroad  Co.,  302,  312. 
Scheffer  v.  Railroad  Co.,  50. 
Scheffler  v.  Railway  Co.,  327,  340. 
Schell  V.  Plumb,  SO. 
Schelter  v.  York,  14,  96. 
Scherpf  v.  Szadeczky,  231. 
Schieffelin  v.  Stewart,  173,  174. 
Schile  V.  Brokhahus,  74. 
Schindel  v.  Schindel,  6. 
Schippel  v,  Norton,  208. 
Schlereth  v.  Railroad  Co.,  315. 
Schmidt  v.  Mitchell,  46,  47,  50. 
Schmitz  V.  Railroad  Co.,  100. 
Schnable  v.  Koehler,  118. 
Schneider  v.  Seeley,  222. 
Schofield  v.  Ferrers,  215,  225,  227. 
Schoolcraft's  Adm'r  v.  Louisville  &  N. 

R.  Co.,  300. 
Schrader  v.  Crawford,  50. 

V.  Lillis,  140. 
Schramm    v.    Boston    Sugar-Refining 

Co.,  239. 
Schrier  v.  Railway  Co.,  326. 
Schroeder  v.  De  Graff,  116. 
Schulze  V.  Great  Eastern  R.  Co.,  60. 
Schumaker  v.   St.  Paul  &  D.  R.  Co., 

35,  30. 
Schutt  V.  Baker,  75. 
Schwerin  v.  McKie,  164. 
Scofield  V.  Day,  198. 
Scott  V.  Boston  &  N.  O.  S.  S.  Co.,  67. 


Scott  V.  Brj'son,  200. 

V.  England,  240. 

V.  Kenton,  43. 

V.  Raymond,  217. 

V.  Rogers,  61,  190. 

V.  Sampson,  112. 

V.  Shepherd,  15. 

V.  Steamship  Co.,  255. 
Scott  Tp.  V.   Montgomery,  34,  71,  92, 

95,  105. 
Scripps  V.  Reilly,  99,  106, 
Scull  V.  Briddle,  18(5. 
Seaman  v.  Trust  Co..  327. 
Searle  v.  Adams,  169. 
Searle's  Adm'r  v.  Railway  Co.,  310. 
Sears  v.  Conover,  3. 

V.  Lyons,  201. 


V.  Railroad  Co., 


230 


Seat  V.  Moreland,  30.* 
Seaton  v.  Jamison,  356.    • 
Secord  v.  Railway  Co.,  315. 
Sedalia  Gaslight  Co.  v.  Mercer,  13. 
Seely  v.  Alden,  4,  118.  359. 
Seger  v.  Town  of  Barkhamsted,  96. 
Seidensparger  v.  Spear,  29. 
Selden  v.  Cashman,  212,  235. 

V.  Preston,  155. 
Selkirk  v.  Cobb,  185. 
Sellar  v.  Clelland,  179. 
Sellars  v.  Foster,  339. 
Selleck  v.  French,  146. 

V.  J.  Laugdon,  232. 
Sellman  v.  Bowen,  356. 
Semple  v.  Bank,  354. 
Seneca  Road  Co.  v.  Auburn  &  R.  R. 

Co.,  27,  31. 
Serensen  v.  Railroad  Co.,  334,  350. 
Serwe  v.  Railroad  Co.,  97. 
Sewall's  Falls  Bridge  v.  Fisk,  74. 
Seward  v.  The  Vera  Cruz,  299. 
Seyfert  v.  Beau,  74. 
Shaber  v.  Railway  Co.,  312. 
Shafer  v.  Wilson,  360. 
Shaffer  v.  Lee,  80. 
Shannon  v.  Burr,  27. 

V.  Comstock,  67. 

V.  Jones,  99. 
Shai-p  V.  Pettit,  356. 

V.  Powell,  46. 
Shai-pe  V.  Lee,  171. 
Shattuc  V.  McArtluir,  99. 
Shattuck  V.  Adams,  26. 


CASES   CITED. 


423 


[The  figures  refer  "^o  pages.] 


Shaw  V.  Brown,  210. 

V.  Cummiskey,  362. 

V.  Etheridge,  81. 

V.  Hoffman,  74,  7G. 

V.  Mayor,  etc.,  of  Macon,  90. 

T.  Nudd,  242. 

V.  Picton,  145. 

V.  Railroad  Co.,  253. 

V.  Rigby,  169. 

V.  Smith,  249. 

V.  Wilkins'  Adm'r,  364, 
Shay  V.  Thompson,  211,  214. 
Sheahan  v.  Barry,  373,  374. 
Shearer  v.  Park  Nursery  Co.,  249. 
Sheehan  v.  Dalrymple,  197. 

V.  Edgar,  71. 
Sheets  v.  Joyner,  371. 
Sheffield  v.  Page,  67. 
Sheffill  V.  Van  Deusen,  17,  18. 
Sheik  V.  Hobson,  209. 
Shelbyville  L.  B.  R.  Co.  v.  Lewark,  70. 
Sheldon  v.  Express  Co.,  119. 
Shelton  v.  Gill,  141. 
Shenango  &  A.  R.  Co.  v.  Braham,  177. 
Shepard  v.  Gaslight  Co.,  56. 

V.  Milwaukee  Gas-Light  Co.,  61. 

Y.  Railway  Co.,  93,  97,  106,  263. 
Shephard  v.  McQuilkiu,  164. 
Sherlock  v.  Ailing,  342. 
Sherman  v.  Dawson,  102. 

V.  Dutch,  210. 

V.  Railroad  Co.,  81,  255. 

V.  Rawsou,  372,  374,  375. 
Sherman  Center  Town  Co.  v.  Leonard, 

64,  73. 
Sherrod  v.  Langdon,  43. 
Sherry  v.  Free-king,  235. 
Sherwood  v.  Railroad  Co.,  100. 
Shiel  V.  City  of  Appleton,  100. 
Shields  v.  Yonge,  298. 
Shiell  V.  McNitt,  140. 
Shipley  v.  Hammond,  146. 
Shipman  v.  Bailey,  170. 

V.  Horton,  31. 

V.  State,  161. 
Shook  V.  Peters,  217. 
Shores  v.  Brooks,  211,  215. 
Short  V.  Abernathy,  199. 
Shotwell  V.  Wendover,  115. 
Shreve  v.  Brereton,  137. 
Shute  V.  Taylor,  139-141. 
Sidfkum  v.  Railroad  Co.,  95. 
Sliver  V.  Kent,  215. 


Simmons  v.  Brown.  357. 

V.  McConiieirs  Adm'r,  304. 
Simons  v.  Burnham,  112. 

V.  Busby,  100,  106. 
Simonson  v.  Blake,  223. 
Simpkins  v.  Low,  181. 
Simpson  v.  Alexander,  185,  186. 

V.  Black,  376. 

V.  City  of  KiHikuk,  64,  68,  69. 

V.  Railroad  Co.,  60,  183. 
Singer  Mauuf'g  Co.  v.  Holdfodt,  218. 

V.  Potts,  30. 
Single  V.  Schneider,  116,  215,  358. 
Singleton  v.  Lewis,  174. 
Singleton's  Adm'r  v.  Kennedy,  6,  210. 
Sinne  v.  City  of  New  York.  341. 
Sioux  City,  etc.,  R.  Co.  v.  Brown,  167. 
Sipperly  v.  Stewart,  161. 
Sitton  y.  MacDonald,  44. 
Skaaraas  v.  Finuegan,  364. 
Skinker  v.  Kidder,  74. 
Skinner  v.  Pinney,  186. 

V.  Tinker,  75. 
Slater  v.  Rink,  96. 

V.  Sherman,  214. 
Slatten  v.  Des  Moines  Valley  R.  Co., 

13. 
Sledge  V.  Rcid,  75. 
Sleight  V.  Ogle.  110. 
Sloan  V.  Edwards,  36,  96,  211. 
Sloman  v.  Walter,  142. 
Slosson  V.  Boadle.  134,  136.  142. 
Small  V.  Douthitt.  170. 
Smalley  v.  Smalley,  360. 
Smeed  v.  Foord,  60,  62,  245. 
Smethurst  v.  Woolston,  193.  242. 
Smith  V.  Bagwell,  214,  216. 

V.  Bank,  155. 

V.  Bergougren,  141,  142. 

V.  Brauu,  377. 

V.  Condry,  72. 

V.  Dukes.  234. 

V.  Dunlap,  194. 

V.  FlandLTs,  6U,  7(!,  155. 

V.  Goodman,  215. 

V.  Grant,  97. 

V.  Green,  44,  49.  60. 

V.  Griffith,  ISO.  253. 

V.  llolcomb.  96.   105,  107,  203. 

V.  Houston.  228. 

V.  llnglics.  367 

V.   Ingt-rsoll  Drill  Co..  14. 

V.  Ma  ben.  20. 


424 


CASES  CITED. 


[Tho  figures  refor  to  pages.] 


Smith  v.  Matthews,  214. 

y.  Morgan,  15G. . 

V.  New  York  &  N.  H.  R.  Co..  3. 

V.  O'Douuell,  43. 

V.  Osborn,  49. 

V.  Overby.  UG,  106. 

V.  Phillips,  120. 

V.  Kailioad  Co.,  G9,  94,  98,  lOG,  800, 
30G,  314,  347. 

V.  St.  Paul,  M.  &  M.  Ry.  Co.,  38. 

V.  Shaw,  19S. 

V,  Sherwood,  3. 

V.  Smith,  47.  135. 

V.  Sprague,  90. 

V.  Stewart,  17. 

V.  Strong,  3G7. 

V.  Sun  Printing  &  Pub.  Ass'n,  17. 

V.  Telegraph  Co.,  280,  283,  284. 

V.  Thackerah,  11,  28. 

V.  Thomas,  244. 

v.  Thompson,  212,  235. 

V.  Times  Co.,  232. 

V.  Velie,  161. 

V.  Wainwright,  136. 

V.  Whitaker,  171. 

V.  Whittier,  231. 

V.  WoodhuG,  375. 

V.  Wunderlich,  210. 
Smithwick  v.  Ward,  217. 
Snell  V.  Cottingham,  62. 

y.  Delaware  Ins.  Co.,  4. 
Snodgrass  v.  Reynolds,  74. 
Snow  V.  Carpenter,  212,  236. 

V.  Grace,  221. 
Soeder  v.  Railway  Co.,  315. 
Solen  V.  Virginia  &  T.  R.  Co.,  156. 
Somers  v.  Wright,  371. 
Sopp  y.  Winpeuny,  353. 
So  Relle  y.  Telegraph  Co.,  103. 
Sorenson  v.  Dundas,  98. 
Sorgenfrei  v.  Schroeder,  105. 
Southard  v.  Rexford,  6,  374,  375,  377. 
Southern  Cent.  R.  Co.  v.  Town  of  Mo- 

rayia,  150,  169. 
Southern  Cotton  P.  &  M.  Co.  v.  Brad- 
ley, 302,  307. 
Southern  Exp.  Co.  y.  Brown.  218.  225. 
Southern  Kan.  Ry.  Co.  v.  Rice,  34,  92, 

98,  218.  219. 
Southern  :Marble  Co.  v.  Darnell,  358. 
Southern  R.  Co.  v.  Kendrick,  212,  213, 

235. 
Southwestern  R.  Co.  v.  Paulk,  299. 


South  &  N.  A.   R.  Co.  V.  iMcLendon, 
100,  105. 

V.  Sullivan,  304. 

V.  Wood,  179,  253. 
Sowers  v.  Sowers,  210,  214,  216,  217. 
Soyer  v.  Water  Co.,  312. 
Sparks  y.  Garrigues,  174. 
Spaulding  v.  Lord,  170. 
Spear  y.  Hiles,  208,  212,  214. 

y.  Smith,  130. 

V.  Sweeney,  211. 
Spencer  y.  Maxtield,  170. 

V.  Pierce,  153. 

V.  Vance,  185. 
Spicer  y.  Hoop,  13G. 

y.  Railway  Co.,  100,  235. 

y.  Waters,  185. 
Spilman  v.  Navigation  Co.,  81. 
Sprague  y.  Brown,  117. 

y.  Craig,  3Y4. 

y.  Telegraph  Co.,  272. 
Spring  v.  Haskell,  252. 
Springett  y.  Balls,  347,  348. 
Squire  y.   Telegraph   Co.,    5,   61,   283, 

286. 
Staal  V.  Grand  St.  &  N.  R.  Co.,  70,  72, 

313,  339. 
Staats  V.  Ten  Eyck,  368. 
Stacy  y.  Publishing  Co.,  208. 
Stadler  v.  Grieben,  80. 
Stafford  v.  City  of  Oskaloosa,  71,  91, 
221. 

y.  Morning  Journal  Ass'n,  113. 
StaUings  y.  Whittaker,  99. 
Standard     Button-Fastening     Co.     v. 

Breed,  138. 
Stanlield  v.  Phillips,  226. 
Stanley  v.  Montgomery,  140. 

v.   Powell,   22. 
Stanwood  y.  i^'iagg,  196. 
Staples  y.  Parker,  139. 
Starbird  y.  Barrows,  oS. 
Stark  y.  Comn,  I9li,  197. 

y.  Olney,  150. 

y.  Starr,  ao4. 
Stark's  Adm'r  v.  Price,  149,  161. 
Startup  V.  Cortazzl,  69,  242. 
State  y.  Autery,  217. 

V.  Baltimore  «fc  U.  K.  Co.,  502,  326. 

V.  Board  of  Education,  14. 

V.  Howorth,  174. 

y.  .lackson,  1Y2. 

y.  Lott,  151. 


CASES   CITED 


425 


[The  figures  refer  to  pages.] 


State  V.  Multomah,  156. 

V.  Probate  Court  of  Dakota  Coun- 
ty, 3U'J. 

V.  Reinhiiru,.  11. 

V.  Steen,  150. 

V.  Taylor,  141. 

V.  Van  Winkle,  15G. 

V.  Ward,  47. 

V.  Weston,  120. 
^taton  V.  Norfolk  &  C.  R.  Co.,  22. 
Stearns  v.  Washburn,  240. 
Steel  T.  Kurtz,  302. 
Stephens  v.  Koonce,  164. 

V.  Railroad  Co.,  71,  91. 

V.  White,  222. 
Stephenson  v.  Thayer,  181. 
Sterling  v.  Peet,  369. 
Stern  v.  People,  lo3. 
Stevens  v.  Barringer,  155. 

V.  Dudley,  50. 

T.  Gwathmey,  155. 

V.  Low.  115,  164. 

V.  Pillsbury,  136. 
Stevenson  v.  Belknap,  100,  215. 

V.  Maxwell,  367. 

V.  Morris,  89,  207. 

V.  Smith,  227. 

V.  Telegraph  Co.,  292. 
Stewart  v.  Bedell,  136,  142. 

V.  City  of  Ripon,  37,  100,  105. 

V.  Drake.  370. 

V.  Gi"ier,  137. 

V.  Maddox,  98,  216. 

V.  Schell,  155. 

V.  Tribune  Co.,  110. 
i>tickney  v.  Allen.  114. 
Stiles  V.  Tilford,  100. 
Still  V.  Hall,  162. 
Stillwell  V.  Temple,  138. 
Stilson  V.  Gibbs,  205.  208. 
Stilwell     &     Bierce     Manuf'g    Co.    v. 

Phelps,  242. 
Stimpson  v.  The  Railroads,  88,  202. 
Stimson  v.  Farnhaui,  28. 
Stirling  v.  Garritee,  185. 
Stockbridgf!     Iron    Co.   v.   Cone   Iron 

Works,  3.")8. 
Stockton  v.  Frey,  95. 
Stodghill  V.  Railroad  Co.,  82,  83. 
Slohcr  V.  Raihvjiy  Co..  :i(ti;.  316. 
Stokely  v.  Thompson.  171. 
Stollcnwerck  v.  Tli.*i«licr,  115. 
Stone  V.  Bennett,  150. 


Stone  v.  Codman,  47. 
Storey  v.  Early,  108. 

V.  Wallace,  111. 
Storrie  v.  Marshall,  302. 
Stoudenmeier  v.  Williamson,  166. 
Stoughton  V.  Lynch,  173. 
Stout  V.  Prall,  6,  100,  374. 
Stowe  V.  Heywood,  100. 
Stowell  V.  Lincoln,  26. 
Stratton  v.  Dole,  373. 
Struwn  V.  Coggswell,  74. 
Streeper  v.  Williams,  134. 
Street  v.  Blay,  247. 

v.  Nelson,  193. 
Streeter  v.  Rush,  135,  136. 
Streubel  v.  Railroad  Co.,  2. 
Stribley  v.  Welz,  373. 
Stringer  v.  Coombs,  197,  198. 
Strohm  v.  New  York,  L.  E.  &  W.  R. 

Co.,  71. 
Strong  V.  City  of  Stevens  Point,  326. 

V.  Hooe,  234. 
Strutzel  V.  Railway  Co.,  325. 
Stuart  V.  Binsse,  153. 

V.  Telegraph  Co.,  103,  296. 
Studabaker  v.  White,  130. 
Stull  V.  Graham,  356. 
Sturgeon  v.  Railroad  Co.,  256. 
Sturgess  v.  Bissell,  253. 
Sturgis  V.  Frost,  91. 
Stutz  V.  Railroad  Co..  98,  10.").  106,  263. 
Succession  of  Anderson,  150. 
Succession  of  Mann,  150. 
Sullens  V.  Railway  Co.,  357. 
Sullivan  v.   Navigation  Co.,  208,  2JS. 
219,  225. 

V.  Railway  Co.,  109,  298. 

V.  Tuck,  189. 
Summerlield  v.  Telegraph  Co.,  99,  104. 
Sumner  v.  Beebe,  154,  156. 

V.  Williams,  367,  368. 
Sunuyside  Coal  iV:  Coke  Co.  v.  Reitz, 

359. 
Surocco  v.  Geary,  14. 
Sutherland  v.  Wyer,  64,  67. 
Sutro  Tunnel  i'o.  v.  Segregated  Bol'-h- 

er  Min.  Co..  150. 
Suttle  v.  llntchiiison.  219. 
Sutton  V.  Howard,  131. 

V.  Town  of  Wauwatosa,  35. 
Snydani    v.    .[cnUiiis,   4,    184,   1S7-18U, 

2  !_'. 
Swails  V.  Cis.sna,  157. 


426 


CASES  CITED. 


[The  figures  refer  to  pages.] 


Swain  v.  Scbiettelin,  250. 

Swan  V.  Timmous,  89. 

Swanscot  Mach.  Co.  v.  Partridge,  154. 

Swarthout  v.  Steamboat  Co.,  225. 

Swartz  V.  Ballou,  369. 

Swett  V.  Hooper,  154. 

Swift  V.  Diclierman,  99. 

V.  Plessner,  89. 

V.  Powell,  138. 
Swinfin  v.  Lowry,  45. 
Sykes  v.  Pawlet,  47. 

V.  Railway  Co.,  329. 
Symes  v.  Oliver,  189. 


T 


Taber  v.  Hutsou,  96,  97,  216. 
Talbot  V.  Whipple,  116. 
Talcott  V.  Marston,  137,  169,  171. 
Talladego  Ins.  Oo.  v.  Peacock,  153. 
Talliaferro's   Ex'rs   v.   King's   Adm'r, 

174. 
Tally  V.  Ayres,  36. 
Tambaco  v.  Simpson,  117. 
Tapling  V.  Joneh,  9. 
Tarleton  v.  MGawley,  48. 
Tarpley  v.  Bldbey,  110. 
Tate  V.  Doe.  355. 
Tatnall  v.  Courtney,  96. 
Tatum  V.  Manning,  194. 
Taul  V.  Bveret,  131. 
Tayloe  v.  Sandiford,  135. 
Taylor  v.  Carpenter,  217. 

V.  Coolidge.  109. 

V.  Davis,  98. 

V.  Ketchum.  185. 

V.  Morgan,  215. 

V.  Morton,  89. 

V.  Plymouth,  15. 

V.  Railway  Co.,  211. 

V.  Shelkett,  100. 

V.  Taylor,  353. 

V.  Town  of  Monroe,  226. 

V.  Wallace,  368. 

V.  Whitehead,  15. 

V.  Wing,  170. 
Taylor,  B.  &  H.   Ry.  Co.  v.  Warner, 

302,  347. 
Teagarden  v.  Hetfield,  51,  227. 
Telegraph,  The,  253. 
Telegraph  Co.  v.  Griswold,  286. 
Telfer  v.  Railroad  Co.,  325. 


Templemau  v.  Fauntleroy,  155. 
Tennessee  Coal   &   R.   Co.   v.   Roddy^ 

231,  308. 
Tennessee  Mauuf'g  Co.  v.  James,  136. 
Tenuey  v.  Smith,  110. 
Tenth  Nat.   Bank   v.   Mayor,   etc.,   of 

New  York,  150. 
Terre  Haute  &  I.  R.  Co.  v.  Brunker^ 
10,  94. 

V.  Buck.  37.  50. 
Terry  v.  Drabeustadt,  370. 

V.  Jewett.  342. 

V.  Mayor,  etc.,  118. 
TerwuUige:-  v.  Wands,  94,  99. 
Tetherow  v.  Railway  Co.,  315. 
Texas  Mex.  R.  Co.  v.  Douglas,  95. 
Texas  T.  R.  Co.  v.  Johnson,  217. 
Texas  W.  Ry.  Co.  v.  Gentry,  181. 
Texas  &  P.  Ry.  Co.  v.  Geiger,  314. 

V.  Hohu.  232. 

V.  Hudman,  347. 

V.  Lester.  331,  333. 

V.  Levi,  lis 

V.  Robertson,  312. 

v.  Tankersley,  164. 
Texas  &  St.  L.  R.  Co.  v.  Young.  75. 
Thatcher  v.  Massey,  169. 
Thayer  v.  Brooks,  81. 

V.  Wilmington  Star  Min.  Co.,  172:. 
Theiss  v.  Weiss,  242. 
Thew  V.  Miller,  186. 
Thibault  v.  Sessions,  111,  113. 
Thill  V.  Pohlman,  208,  213,  236. 
Third  Nat.  Bank  of  Baltimore  v.  Boyd, 

195. 
Thirteenth   &   F.    St.   P.   Ry.   v.   Bou- 

drou,  2. 
Thomas  v.  Brackney,  29. 

V.  Railroad  Co.,  345. 

V.  Sternheimer,  163. 

V.  Thomas'  Ex'i-,  354. 

V.  W^eed,  149,  165. 

V.  Wells.  161 
Thomas,    B.    &    W.    Manuf'g   Co.    t, 
Wabash,  St.  L.  &  P.  R.  Co.,  49,  59i. 
06,  77. 
Thompson  v.  Alger,  239. 

V.  Boston  &  M.  R..  155. 

V.  Hoskins,  121. 

V,  Hudson,  131. 

V.  Improvement  Co.,  39. 
V.  Johnstoa.  339. 
V.  Lumley,  222. 


CASES   CITED. 


427 


[The  figures  refer  to  pases.] 


Thompson  v.  Pickel,  170. 

V.  Powning,  S'J. 

V.  Railroad.  16S. 

V.  Riggs,  196. 

V.  Shattuck.  64. 

V.  Telegraph  Co.,  102,  104. 
Thorns  v.  Dingley,  249,  250. 
Thomson-Houston  Electric  Co.  of  New 
York  Y.  Durant  Land-Imp.  Co.,  58, 
371. 
Thorn  y.  Knapp,  6,  102,  213,  372,  375, 

378,  379. 
Thome  v.  McVeagh,  60,  250. 
Thornton  y.  Turner,  2. 
Thorp  V.  Bradley,  26,  30,  224. 
Thrall  y.  Knapp,  109. 

Y.  Lathrop,  164. 
Thrasher  y.  Tyack,  356. 
Thurston  y.  Hancock,  359. 
Thurston  v.  Martin,  233. 
Tice  V.  Munn,  37. 
Tidman  v.  Ainslie,  112. 
Tierney  v.  Whiting,  371. 
Tilley  v.  Railroad  Co.,  302,  309,  316, 

344. 
Tillman  v.  Morton,  174. 
Tillotson  V.  Smith,  27    116. 
Tingley  v.  Cutler.  13« 
Titus  Y.  Corkins,  89,  207.  214. 
Tobin  Y.  Railway  Co.,  30G. 

Y.  Shaw.  102,  372,  374. 
Todd  Y.  Botchford,  150. 
Tode  V.  Gross.  1.34. 
Toledo,  P.  dc  W.  Ry.  Co.  v.  Johnston, 
165. 

V.  Patterson.  231. 
Toledo,  W.  &  W.  R.  Co.  V.  Baddeley, 
95. 

V.  Bcals.  234. 

Y.  McDonoueh.  97. 

Y.  Roberts,  209. 
Toll  Y.  Hiller,  172 
Tomlinson  y.  Derby,  226. 

V.  Railroad  Co.,  210,  263. 
Tone  V.  Wilson,  367. 
Tootle  V.  Clifton,  3.59. 
Torp  V.  Gulseth,  120. 
Torry  y.  Black,  114. 
'J'own  of  Fowler  v.  Linquist,  232. 
Town  of  Genoa  y.  Woodrnfl",  173. 
Town  of  Nappanoo  v.  Rufkm.iii.  95. 
Town  of  Royaiton   v.   Royallon  &:.   \V. 
Turnpike  Co.,  79. 


Town  of  Troy  v.  Cheshire  R.  Co.,  82^ 

83,  84. 
Town  of  Union  y.  Durkes,  235. 
Town  of  Wheatlauds  y.  Taylor,  141. 
Townsend  v.  Briggs,  96,  232. 

Y.  Nickorsou  Wharf  Co.,  61,  74. 
Tracy  y.  Gunn,  366. 

Y.  Swartwout,  211. 
Trafford  y.  Express  Co.,  307. 
Trapnall  v.  ^McAfee,  89. 
Trauermau  y.  Lippincott,  300. 
Travers  y.  Railway  Co.,  21S. 
TraYis  Y.  DufL'au,  43. 
Trent  &  Humber  Co.,  In  re,  61. 
Trigg  Y.  Clay,  243. 

Y.  Railway  Co.,  99,  261. 
Trimble  y.  Spiller,  96. 
Trinity  Church  y.  Higgins,  371. 
Tripp  Y.  Grouner,  210. 
l"i-out  Y.  Kennedy,  180. 
Trowbridge  v.  Holcuiub,  199. 
Trower  y.  Elder,  139. 
True  Y.  Telegraph  Co.,  61,  274, 
Trull  Y.  Granger,  365. 
Truman  y.  Railway  Co.,  13. 
Trustees  of  First  Orthodox  Congrega- 
tional Church  Y.  Walrath,  139. 
Trustees  of  Howard  College  v.  Turner,. 

SO. 
Tubbs  Y.  Van  Kleek,  374. 
Tucker  y.  GroYcr,  161. 

Y.  Newman,  362 

Y.  Parks    222. 

Y.  Wright,  115. 
Tufts  Y.  Adams.  371. 

Y.  Bennett,  238. 
l"^ller  V.  Carter,  163. 
Tullidge  Y.  Wade,  201. 
■rally  Y.  Fitcliburg  R.  Co.,  26. 
'I'nnhridtrc  Wells  Dljiper's  Case,  29. 
l\innicliffe  v.  Railroad  Co.,  101. 
Turner  \.  Dawson,  148. 

Y.  Iladden,  SO. 

Y.  Miller.  .368.  369. 

Y.  Railroad  Co.,  219.  304. 

Y.  Telegraph  Co..  273. 
Turner's  Case,  14. 
Turney  v.  Smith,  356. 
1  uriou  Y.  Reiunlcr  Co.,  111. 
'I'ntcur  V.  Railroad  Co.,  338. 
I'ylfr  Y.  Ponieroy,  105. 

V.  Saffonl,  S'.i. 

V.  Sallcy,  ;'.72,  374. 


428 


CASES   CITED. 


The  ti.iriires  i-ofer  lO  pajjes.] 


Tyler  v.  Telegraph  Co.,  104,  273,  286. 

Tyuer  v.  Hays,  221,  222. 

Tyng  V.   Commercial  Warehouse  Co. 

1S5. 
Tyson  v.  Ewing,  200,  215. 


u 


Ulbricht  V.  Eufaula  Water  Co.,  27. 
Uline  V.  Railroad  Co.,  81-83,  8G. 
Underwood  v.  Wolf,  247. 
Union  Pac.  Ry.  Co.  v.  Dimdeu,  323, 
325. 

V.  Hause,  206. 

V.  Shook,  228. 
Union  Sav.  Inst.  v.  Boston,  170. 
Union  Trust  Co.  v.  Cuppy,  81. 
U.  S.  V.  Alden,  14. 

V.  Magoon,  358. 

V.  North    Bloomfield    Gravel    Min. 
Co.,  14. 

V.  Taylor,  207.  210,  214,  360. 
U.  S.  Bank  v.  Chapin,  169. 
U.  S.  Exp.  Co.  V.  Haines,  256. 

V.  Meints,  119. 
U.  S.  Tel.  Co.  V.  Gildersleve,  292. 

V.  Wenger,  274,  287. 
U.  S.  Trust  Co.  V.  O'Brien,  371. 
Upham  V.  Dickinson,  235. 
Upjohn  V.  Board,  22. 


Tallery  v.  State,  111. 

Vallo  V.  United  States  Exp.  Co.,  15. 

Valpy  V.  Oakeley,  243. 

Van  Alen  v.  Rogers,  352,  353. 

Van  Arsdale  v.  Rundel,  61. 

Van  Benschooten  v.  Lawson,  172. 

Van  Brocklen  v.  Smeallie,  241. 

Van  Brunt  v.  Railroad  Co.,  348. 

Vandenburgh  v.  Truax,  38. 

Vanderpool   v.    Richardson,    103,    372, 

373,  375. 
Vanderslice    v.    City    of   Philadelphia, 

361. 
Van  Derreer  v.  Sutphin,  112. 
Vandervoort  v.  Gould,  353. 
Van  Deusen  v.  Young,  363. 
Van  de  Venter  v.  Railway  Co.,  95. 


Vanduzor  v.  Linderman,  20. 
Van  Hoozler  v.  Railroad  Co.,  81. 
Van  Husan  v.  Kanouse,  174,  195. 
Van  Norden  v.  Robinson,  22. 
Van  Orsdol  v.  Railroad  Co.,  82. 
Van  Pelt  v.  McGraw,  120. 
Van  Rensselaer  v    Dole,  17. 

V.  Jewett,  161. 

V.  Jones,  161. 
Van  Rensselaer's  Ex'rs  v.  Jewett,  161. 

V.  Platner's  Ex'rs,  222. 
Van  Winkle  v.  Wilkins,  44. 
Van  Winter  v.  Henry  Co.,  235. 
\'au  Wyck  v.  Allen,  75,  249. 
Varco  V.  Raili\-ay  Co.,  165. 
Vaughan  v.  Kennan,  175. 
Vedder  v.  Hildreth,  44. 
^'eiths  V.  Hdgge,  148. 
Vera  Cruz,  The,  299. 
Vermilya  v.  Railway  Co.,  359. 
Vermont  State  Baptist  Convention  v, 

Ladd,  153 
Vette  V.  U.  S.,  167. 
Vicars  v.  Wilcocks,  47. 
Vickery  v.  McCormick,  61. 
Vicksburg  &  J.  R.  Co.  v.  Patton,  211, 

218. 
Vicksburg  &  M.   R.   Co.  v.   Ragsdale, 
257. 

V.  Sea  Ulan,  208. 
Victorian  Railways  Commissioners  v. 

Coultas,  94,  260. 
Village  of  Carterville  v.  Cook,  46. 
Village  of  Sheridan  v.  Hibbard,  105. 
Vinal  V.  Core,  98. 
Voltz  V.  Blackmar,  109,  201. 
Von  Hemert  v.  Porter.  173. 
Von  Storch  v.  Griffin.  378. 
Vorse  V.  Phillips,  87,  90. 
Vosburg  V.  Putney,  37. 
Vosburgh  v.  Welch.  116. 
Vossen  v.  Dautel,  15. 


W 

Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Locke, 
19,  37. 
V.  Rector,  212,  218,  235. 
Wabash  W.  R.  Co.  v.  Friedman,  226. 

232 
Wabash  &  W.  R.  Co.  v.  :Morgau,  95. 


CASES   CITED. 


429 


friif-  fiETiires  refer  to  pa  pes.] 


Wade  T.  Leroy,  71. 

Wadsworth  v.  Telegraph  Co.,  93,  102. 
104. 

V.  Treat,  96. 
Waggoner  v.  Cox.  131. 
Wagner  v.  Peterson,  193. 
Wainwright  y.  Weske,  222. 
Wakefield  v.  Beckley,  141. 
Wakeman  v.  Manufacturing  Co.,  75. 
Waldo  V.  Goodsell,  307. 
Waldron  v.  Willard,  3. 
Walker  v.  Borland.  194. 

V.  Cruikshank,  20. 

T.  Engler,  135,  137. 

v.  Erie  Ry.  Co.,  71. 

V.  France,  365. 

V.  Fuller,  210. 

V.  Railroad  Co.,  95,  233,  300. 

V.  Smith,  228. 
Wall  V.  City  of  London  Real  Property 

Co.,  4. 
Wallace  v.  Berdell,  354. 

V.  Goodall,  358. 

V.  Railroad  Co.,  95,  105. 

V.  York,  90. 
Waller  v.  Long,  131. 

V.  Waller,  210. 
Wallis  V.  Smith,  138. 
Walrath  v.  Redfield.  165. 
Walser  v.  Telegraph  Co.,  280. 
Walsh  V.  Railway  Co.,  92,  105,  260. 
Walter  v.  Post,  118. 
Walters  v.  Chamberlain,  359. 

V.  Railroad  Co.,  328,  340. 
Walton  V.  Meeks,  305. 

V.  Walton,  223. 
Walworth  v.  Pool,  67. 
Wanamaker  v.  Bowes,  210. 
Ward  V.  Ashbrook,  371. 

V.  Benson,  114. 

V.  Blackwood.  9(3,  211. 

V.  Dean,  113. 

V.  Deane,  99. 

V.  Hudson  River  Bldg.  Co.,  135. 

V.  .Tewett.  142. 

V.  Manufacturing  Co.,  112. 

V.  New  Yoik  C.  R.  Co.,  .56,  255. 

v.  Smith.  74,  1.55.  227. 

V.  Thompson,  97. 
Wardrobe  v.  Stage  Co.,  217. 
Ward's  C.  &  P.  L.  Co.  v.  Elklns,  251. 
Ware  v.  Simmons.  156. 

V.   N\'aler  Co.,  95. 


Warmouth  v.  Cramer,  17. 
Warner  v.  Bacon,  79. 

V.  Chamberlain,  100. 

V.  Juif,  170. 

V.  Publishing  Co.,  99,  107. 
Warre  v.  Calvert,  26. 
Warren  v.  Boston  &  M.  R.  Co.,  94. 

V.  Cole,  88. 

V.  Franklin  Ins.  Co.,  197. 
Warwick  v.  Hutchinson,  49. 
Waters  v.  Greenleaf-Johuson  Lumber 
Co.,  4. 

v.  Towers,  44. 
Watkin  v.  Hall,  112. 
Watkins  v.  Morgan,  147. 

V.  Rist,  64. 
Watkinson  v.  Laughton,  149. 
Watson  V.  Ambergate,  73. 

V.  Christie,  109. 

V.  Fuller.  156. 

v.  Harmon,  229,  233. 

V.  Inhabitants  of  Needham,  245. 
Watt  V.  Hoch,  148. 

V.  Potter,  185. 
Watterson  v.  Allegheny  Val.  R.  Co., 

76. 
Watts  V.  Camors.  139. 

V.  Watts,  171. 
Watts'  Ex'rs  v.  Sheppard,  140,  141. 
Weaver  v.  Bachert,  374. 

V.  Page,  231. 

v.  Penny,  49. 
Webb  V.  Oilman,  208,  210,  212,  214. 

V.  Gross.  27. 

V.  Portland  Manuf  g  Co.,  8,  12,  16, 
25,  26,  29. 

V.  Railway  Co.,  302,  333. 
Weber  v.  Anderson,  367. 

V.  Citj-^  of  Creston,  95. 

V.  Morris  &  E.  R.  Co.,  118. 
Webster  v.  Moe,  3.58. 
Weeks  v.  Barton,  369. 

V.  Little,  135. 

V.  Prescott,  47. 
Wegner  v.  Second   Ward   Sav.  Bank, 

150,  181. 
Wehle  V.  Butler.  114,  149.  164. 

V.  Havilaiid,  76. 

V.  Speliiijin,  114. 
Weir  v.  Allcglieny  Co.,  151. 
Wohli  v.  Aiidcrsnu,  59. 

v.   Dnraiid,  .S8. 

V.  .lugt'iilieimer,  97. 


430 


CASES  CIIED. 


[The  figures  refer  to  [lasos.] 


Welch  V.  McDonald,  135. 

V.  Railroad  Co..  87,  89,  347. 
V.  Ware.  71. 
Weld  V.  Reilly,  115. 
Weller  v.  Railway  Co.,  347. 
Wells  V.  Abernethy,  31)4. 

V.  New    Haven    &    Northamptuu 

Co.,  S3,  86. 
V.  Padgett,  372-374. 
V.  Railway  Co.,  302,  312. 
Wells,  Fargo  &  Co.  Exp.  v.  Fuller,  102. 
Welsh  V.  Cheek,  20. 

V.  Railroad  Co.,  173. 
V.  Stewart,  225. 
Wemple  v.  Stewart,  179. 
Wentworth  v.  Dows,  248. 
Wernwag  v.  Mothcrshead,  171. 
Wesson  v.  Iron  Co.,  3G2. 
West  V.  Forrest,  9G,  105. 

V.  Telegraph  Co.,  104,  296. 

V.  Wentworth,  190. 
Westcott  V.  Middleton,  33,  92. 

V.  Railroad  Co.,  350. 
Western  Manuf  g  Co.  v.  The  Guiding 

Star,  254. 
Western  Ry.  of  Alabama  v.  Mutch,  45. 
W.  U.  Tel.  Co.  V.  Adams,  103- 

V.  Andrews,  102. 

V.  Bates,  272. 

V.  Berdine,  106. 

V.  Beringer,  103. 

V.  Blanchard,  286. 

V.  Bowen,  275,  281. 

V.  Broesche,  103. 

V.  Brown.  103.  271. 

V.  Carter,  102.  103,  284. 

V.  Clifton,  281. 

V.  Cline,  104. 

V.  Coggin,  104. 

V.  Collins,  269. 

V.  Cooper,  101,  105,  277,  279. 

V.  Corn  well.  284. 

V.  Crall,  73,  282. 

V.  Cunningham,  104. 

V.  De  .Tarles.  103. 

T.  Du  Bois,  273. 

V.  Erwin.  103. 

V.  Evans.  103. 

V.  Eyser.  211,  218. 

V.  Fatman,  275.  292. 

V.  Feegles.  103 

V.  Fellner.  278. 

V.  GrahaJi,  283. 


W.  U.  Tel.  Co.  V.  Hall,  49,  73,  279,  292. 

V.  Haman,  271,  287. 

V.  Hearne,  294. 

V.  Henderson,  104,  296. 

V.  Ilobson,  273. 

V.  Hopkins,  222. 

V.  Hyer  Bros.,  271,  290,  292. 

V.  .T.  A.  Kemp  Grocer  Co.,  283,  284. 

V.  .Tames,  270. 

V.  Jobe,  273,  289. 

V.  Johusou,  103. 

V.  Keudzora,  277. 

V.  Kirkpatric'k.  103. 

V.  Lanilis.  269. 

V.  Linn,  102. 

V.  Linney.  269. 

V.  Lively,  283. 

V.  Longwill,  276. 

V.  Lowrey,  288. 

V.  Martin.  292. 

V.  May,  103. 

V.  Moore,  103. 

V.  Motley,  102. 

V.  Nations,  103. 

V.  Newhouse,  104. 

V.  Pai'ks,  278 

V.  Parlin  &  Orendorff  Co.,  284. 

V.  Proctor.  273. 

V.  Reynolds,  292. 

V.  Robinson,  276. 

V.  Rogers.  99,  104.  267. 

V.  Rosen trcter,  103. 

V.  Sheffield,  272,  289. 

V.  Short,  285. 

V.  Simpson.   103. 

V.  Smith,  278,  286. 

V.  Stephens,  102. 

V.  Stevens,  270. 

V.  Stone.  102. 

V.  Valentine.  275. 

V.  Ward,  103. 

V.  Way,  291,  292. 

V.  Williford,  269,  286,  288. 

V.  Wilson,  292. 

V.  Wingate,  102. 

V.  Wood,  104. 
Western  &  A.  R.  Co.  v.  McCauley,  165. 

V.  Meigs,  342. 

V.  Young,  100,  163.  166. 
Westervelt  v.  Gregg.  2. 
Westfield  v.  Westfield.  170. 
Weston  v.  Railway  Co..  255. 
Wetzel  V.  Richcreek,  371. 


CASES  CITED. 


431 


[The  figures  refer  to  pages.] 


"Whalley  v.  Pepper,  20. 
Wheatley  v.  Thorn,  216. 
Wheaton  v.  Pike.  174,  175. 
Wheelan  v.  Railway  Co.,  340. 
Wheeler  v.  Coimty  of  Newberry,  154. 

V.  Hansou,  96. 

V.  Pereles,  119 

V.  Randall,  43. 
Wheeler    &    Wilson    Manuf'g    Co.    v. 
Boyce.  208,  218. 

V.  Thompson,  249. 
Wheelock  v.  Wheelwright,  117. 
Wheelright  v    Beers,  253. 
Whipple  V.  Manufacturing  Co.,  17,  88, 
233. 

V.  Weauskuck  Co.,  360. 
White  V.  Ball  )U.  50. 

V.  Canuada.  221. 

V.  Clack,  3.55. 

V.  Dresser.  97. 

V.  litis,  171. 

V.  Lyons,  150. 

V.  Miller.  75,  162,  249. 

V.  Moseley,  360. 

V.  Murtland,  100. 

V.  Salisbury,  194. 

V.  Stage  Co.,  222,  223. 

V.  Stoner,  363. 

V.  Webb,  120. 
Whitehall  Transp.  Co.  v.  New  Jersey 

Steaoi  Boat  Co..  166. 
Whitehead  v.  Kennedy,  235. 
Whitehouse  v.  Fellowes,  85. 
White  Sewing- :Mach.  Co.  v.  Richter,  37. 
Whiteside  v.  Jennings,  364,  365. 
Whitfield  V.  Westbrook,  211. 

V.  Whitfield,  184,  194,  215. 
Whitford  v.  Railroad  Co.,  299,  307. 
W'hitham  V.  Kershaw,  4. 
"Whitmarsh  v.  Littlefield,  67. 
Whitmore  v.  Bischoff,  81, 
Whitney  v.  Allaire,  2,  27. 

V.  liltchcock,  96,  215. 

V.  Railroad  Co.,  164,  253, 

V.  State,  154. 

V.  Thacher.  197. 
Whiton  V.  Railroad  Co.,  .302,  317. 
Whilson  V.  Gray,  76. 
Wliittemore  v.  Cutler,  25,  88. 
Whitten  V.  Fuller,  115. 
Wliitworth  V.  Hart,  1.53. 
Wibaux  V.  Live  Stuck  Co.,  140. 


Wichita  &.  W.  R   Co.  v.  Beebe,  77. 
Wiggin  V.  Coffin,  202,  233. 
Wilbur  V.  Johnson,  102,  372,  374, 
WUcox  v.  Campbell,  69. 

v.  Railroad  Co.,  92. 
Wilcus  V.  Kling,  135,  136. 
Wilds  V.  Bogau.  102,  374. 
Wiley  V.  Keokuk,  110. 

V.  Railroad  Co.,  49. 
Wilhoit  V.  Hancock,  100. 
Wilkinson  v.  Collej',  136. 

V.  Davies,  38. 

V.  Drew.  211,  225. 

V.  Searcy   211. 
Willard  v.  Holmes,  Booth  &  Haydens, 

99,  231. 
Wilier  V.  Navigation  Co.,  74. 
Williams  v.  Bank,  154. 

V.  Burg,  368. 

V.  Chicago  Coal  Co.,  67. 

V.  Crum.  186 

v.  Dakin,  134. 

V.  Esling.  31. 

T.  Hollingsworth,  376. 

V.  Jones,  198,  239. 

V.  Mostyn,  28,  31. 

V.  Reynolds,  245. 

V.  Sims,  198. 

V.  Vanderbilt.  38,  259,  260. 

V.  Water  Co.,  81. 

V.  Williams,  215. 
Williams'  Case.  18,  19. 
Williamson  v.  Broughton,  150. 
Williar  v.  Association,  2. 
Willinghani  v.  Hooven,  75. 
Willings  V.  Cousequa,  14Q,  155. 
Willis  V.  Branch,  74. 

V.  City  of  Perry,  22. 

V.  McNeill.  2.36. 

V.   McNott,  164. 
AVilloughby  v.  Backhouse,  2. 
Wills  V.  Allison.  197. 
Wlllson  V.  Railroad  Co..  98. 
Wilsey  v.  Railroad  Co.,  98. 
Wilson  V.  Bowen.  205.  208. 

V.  City  of  Troy,  165. 

V.  Cobb,  150. 

V.  Dean,  131. 

V.  Duck  Co..  43,  55,  56,  GO. 

V.  Dunville.  .38. 

V.  <;porge.  198. 

V.  (Juit,  99. 


432 


CASES   CITED. 


[The  figures  reter  to  pages.] 


Wilson  V.  The  Mary,  14. 

V.  Matlle^YS,  190. 

V.  Middleton,  216. 

V.  Railroad  Co.,  38,  50,  255,  257. 

V,  Keed}-,  250. 

V.  Slopler,  100. 

V.  Vaughn,  208,  210. 
Wiltse  V.  Town  of  Tildeu,  339. 
Winch  V.  Ice  Co.,  154.  , 
Winchester  v.  Craig,  116,  163,  358. 

V.  Stevens  Point,  81. 
Winkler  v.  Kailroad  Co.,  50. 

V.  Roeder,  87. 
Winn  V.  Pecldiam,  212,  214. 
Winne  v.  Kelley,  61. 
Winnt  V.  Railway  Co.,  330. 
Winslow  V.  Lane,  75. 

V.  McCall,  371. 

V.  Stokes,  77. 
Winstead  v.  Hulme,  87,  207. 
Winter  v.  Peterson,  6,  215. 
Winterbottom  v.  Derby,  18. 

V.  Wright,  27. 
Winterburn  v.  Brooks,  14. 
Wintermute  v.  Cooke,  181. 
Wintz  V.  Morrison,  44. 
AVire  v.  Foster,  2-43. 
Wisdom  V.  Reeves,  354. 
Wise  V.  Teerpenning,  302. 
Witherow  v.  Briggs,  171. 
Withers  v.  Green,  247,  248, 

V.  Henley,  SO. 

V.  Reynolds,  79. 
Wittich  V.  O'Neal,  89. 
Wolilenberg  v.  Melchert,  232. 
Wolcott  V.  Mount,  61,  70,  75,  249. 
Wolf  V.  St.  Louis  Independent  Water 
Co.,  69. 

V.  Studebaker,  67. 

V.  Trinlcle,  96,  106. 
Wolfe  V.  Railway  Co.,  320. 
Wolff  V.  Cohen,  216. 
Wolford  V.  Mining  Co.,  347. 
Womack  v.  Fudikar,  20. 
Wood  V.  BuUeus.  195. 

V.  Lane,  101. 

V.  Robbins,  148. 

V.  Wand,  27. 
Woodbury   v.   Turner,   Day   &   Wool- 
worth  Manuf'g  Co.,  134. 
Woodger  v.  Railway  Co.,  255. 
Woodhull  v.  Rosenthal,  353,  354. 

V.  Wagner,  198. 


Woodin  V.  Wentworth,  74. 
Woodman  v.  Nottingliam.  4. 
Woodmansie  v.  Logan,  20. 
Woodruff  V.  Cook,  222,  227. 

V.  Webb,  169. 
Woods  V    McCall,  115. 
Woodward  v.  Glidden,  109. 

V.  Railroad  Co.,  164. 

V.  Woodward,  150. 
Worden  v    Railroad  Co.,  339. 
Work  V.  Bennett,  193. 

V.  Glaskius,  155. 
Worrall  v.  Munn,  363. 
Worrell  v.  McCliuaghan,  135. 
Worster  v.  Bridge  Co..  232. 
Wright  V.  Bank,  188,  192. 

V.  Compton,  225. 

V.  Davenport,  248. 

V.  Donuell,  209. 

V.  Mulvauey,  74,  76. 

V.  Nipple,  371. 

V.  AVright,  m. 
Wulstein  v.  Mohlman,  44,  51,  97. 
Wunderlich   v.   Mayor,    etc.,   of   New 

York,  231. 
Wylie  V.  Birch,  28. 
Wyman  v.  Leavitt.  94. 
Wynne  v.  Parsons,  17,  89,  207. 


Yale  V.  Saunders.  117. 
Yater  v.  Mullen,  185. 
Yates  V.  Joyce,  1. 

V.  Railroad  Co..  210,  261,  263. 
V.  Wliyte.  118. 
Yeager  v.  Weaver,  365. 
Yeates  v.  Reed,  17. 
Yellowby   v.   Commissioners    of    Pitt 

Co.,  154. 
Yellow  Pine   Lumber  Co.   v.  Carroll, 

1.54. 
Yelton  V.  Slinliard,  164. 
Y'enner  v.  Hammond,  1.34. 
Yerian  v.  Linkletter,  211. 
Yetter  v.  Hudson,  125,  131. 
Yoakum  v.  Dunn,  92. 
V.  Kroeger,  10,  94. 
Yokom  V.  McBride.  365. 
Yorton  v.   Railway  Co.,  70,  258.  261,'. 

262. 
Young  V.  Courtney,  88. 


CASES   CITED. 


433 


[Tbe  figures  refer  to  pages.] 


Young  T.  Cureton.  76. 

v.  Godbe.  147. 

T.  Hill.  172.  174. 

V.  Johnson,  113. 

V.  Mertens.  241. 

V.  Polack.  147. 

T.  Spencer,  31. 

V.  Telegraph  Co..  03. 

T.  Thompson.  170. 

T.  White,  135. 
Yount  V.  Carnej-,  OS. 
Yundt  T.  Hartrnnlt.  100. 

LAW  DAM.— 3S 


Zabriskie  v.  Central  Vt.  R.  Co..  24S. 

V.  Smith,  3,  121. 
Zeigler  v.  Wells,  Fargo  &  Co.,  181. 
Zeliff  V.  Jennings,  09. 
Zemindar  Case,  13. 
Zenobia,  The,  200. 
Ziebarth  v.  Nye.  82,  359, 
Ziegler  v.  Powell,  01.  216. 
Zogbaum  v.  Parker,  3. 


INDEX. 


[the  figures  refer  to  pages.] 


A 

ABDUCTION, 

of  children,  damages  for  mental  suffering,  100  (note). 
AD  DAMNUM, 

definition  and  nature,  222. 

ADMINISTRATOR, 

nominal  damages  for  failure  to  settle  accounts,  27  (note). 
ADMIRALTY, 

counsel  fees  in,  not  allowed  as  damages,  88  (note). 

ADVERTISEMENT. 

damages  for  negligent  omission  of,  74. 

AGENT, 

liability  of  principal  for  exemplaiy  damages  for  act  of,  217. 

AGGRAVATION  AND  MITIGATION. 

see  "Exemplary  Damages." 
deilnition  of  terms,  107. 

the  question  only  as  to  the  admissibility  and  effect  of  evidence,  108. 
province  of  court  and  juiy,  108. 
assault  and  batterj',  109. 
false  imprisonment,  109. 
libel  and  slander,  110. 

provocation,  110. 

common-law  retraction.  111. 

honest  belief,  rumors.  111. 

plaintiff's  character  and  position,  113. 
of  exemplary  damages,  211. 
breach  of  marriage  promise,  circumstances  of  aggravation,  374. 

circumstances  in  mitigation,  376. 

ALIENATION  OF  AFFECTIONS, 

d:iiii:i-os  for  mental  suffering  of  wife,  99  (note). 
LAW  UAM.  (485) 


43(5  INDEX, 

[The  figures  refer  to  pages.] 

ALTERNATIVE   CONTRACTS, 
defined,  141. 
damages  for  breach,  141. 

APrEAJL, 

interest  as  damages  for  vexatious  appeal,  157. 

ASSAULT  AND  BATTERY, 

damages  for  mental  suffering,  9G  (note),  101. 
aggravation  and  mitigation  of  damages,  lOi). 
exemplary  damages,  214. 

AUTHORIZED  CONDUCT, 
damage  incident  to,  12. 
damages  for  permanent  structure,  S3, 

AVOIDABLE  CONSEQUENCES, 

not  a  proximate  result  of  a  wrong,  47, 

reasonable  expenses  recoverable,  GU. 

the  rule  applied,  illustrations,  06. 

limitations  of  rule,  08. 

rule  of  contributory  negligence  distinguished,  08. 

carrier's  refusal  to  transport,  duty  to  seek  othtr  mode  of  conveyance,  251. 

duty  of  passenger  to  pay  fare  to  avoid  ejection,  202. 

in  actions  against  telegraph  companies,  293. 

trespass  to  real  property,  300. 


BILLS  ANT)  NOTES, 
value,  181  (note). 

BONDS. 

damages  on  penal  bonds,  122. 

damages  cannot  be  greater  than  penalty.  123. 

damages  less  than  penalty,  123. 

value,  181. 

exemplary  damages  in  action  on  statutory  bond,  207. 

BREACH  OF  PROMISE  OF  MARRIAGE, 
liquidated  damages  for,  134. 
compensatory  damages,  372. 
pecuniary  losses,  373. 
nonpecuniary  losses,  373. 

circumstances  of  aggravation,   374. 
circumstances  in  mitigation,  376. 
exemplary  damages,  207,  378. 


INDEX.  437 

[The  figures  refer  to  pages.] 


0 

CARRIERS, 

damages  in  actions  against,  251. 

carders  of  goods,  damages  for  refusal  to  transport,  251. 
avoidable  consequences,  251. 
damages  for  loss  or  nondelivery,  252. 
damages  for  injury  in  transit,  254. 
damages  for  delay,  255. 
consequential  damages,  256. 
illustrations,  257. 
damages  for  injury  to  passenger,  257. 

damages  for  mental  suffering  of  passenger,  259. 
exemplary  damages  for  injury  to  passenger,  259. 
personal  injury  to  passenger,  2G0. 
failure  to  carry  passenger,  260. 
delay,  2G0. 
wrongful  ejection,  261. 

mental  suffering,  97   (note), 
duty  of  passenger  to  pay  fare  to  avoid  ejection,  262. 

CAUSE, 

see  "Proximate  and  Remote  Cause." 

CERTAINTY. 

the  required  certainty  of  damages,  70. 
amount  of  damage  must  be  shown,  70. 
profits  or  gains  prevented,  72. 

illustrations,  73. 
liquidated  damages  where  damages  are  uncertain,  133. 
of  damages  in  actions  against  telegraph  companies,  268. 
remote  and  speculative  damages  in  actions  against  telegraph  companies, 
277. 

CIPHER  MESSAGES, 

consequential  damages  for  delay,  59. 
damages    for   nondelivery,    289. 
abbreviations,  293. 

CIVIL  DAMAGE  LAWS, 

liability  for  death  of  person  engaged  In  violating  law,  46. 
damages  for  mental  suffering,  96  (note). 

COMPENSATION, 

see  "Couipensatoiy  Damages";    "Value." 
for  nonpayment  of  money,  see  "Interest." 
tlie  theory  of  damages,  3. 


A'66  INDEX. 

[Tlae  figures  refer  lo  pages.J 

COMPENSATION— Continued, 

not  restitution,  tlie  measure  of  dainagos,  3. 
exemplary  damages,  3. 
for  cousequeutial  losses,  39. 

recoverable  for  natural  and  probable  consequences,  49. 
elements  of  compensation,  SG. 
pecuulaiy  losses,  87. 

expenses  of  litigation,  87. 
counsel  fees,  S7. 
expenses  of  prior  litigation,  89. 
physical  pain  and  inconvenience,  91. 
mental  suffering,  92. 

as  the  basis  of  a  cause  of  action,  92. 
in  actions  of  tort,  95. 
in  personal  injury  cases,  95  (note), 
under  civil  damage  laws,  9G  (note), 
indecent  assault,  96  (note), 
injury  to  child,  recovery  by  parent,  96  (note) 
for  injury  to  realty  and  personalty,  97  (note). 
for  false  imprisoument,  98  (note),  101. 
criminal  conversation,  99  (note), 
seduction,  99  (note), 
abduction  of  children,   100  (note), 
prospective  mental  suffering,  100  (note). 
for  indignities  to  corpse,  101. 
in  actions  of  contract,  102. 
kinds  of  mental  injury  compensated.  105. 

damages  for  mental  suffering  compensatory,  not  exemplary,  103. 
reduction  of  loss,  specific  reparation,  114. 
reparation  accepted,  110. 
reparation  by  third  party,   117. 
Injuries  to  limited  interests,  118. 

interests  in  real  property  in  possession  and  in  expectancy,  118. 
special  property  and  ultimate  ownersliip  in  personal  property,  119. 
interest  of  mortgagors  and  mortgagees,  120. 
joint  interests,  120. 

COMPENSATORY  DAMAGES, 
defined,  32. 

nominal  and  substantial  compensation,  32. 
compensation,  the  principle  governing  award  of  damages,  33, 
fall  short  of  actual  indemnity,  33. 
when  amount  a  question  of  law,  33. 
when  amount  a  question  for  jury,  3-L 


INDEX.  439 

[Tho  figures  reiei  to  pages.] 

COMPENSATORY  DAMAGES— Coutiuued, 

compensation  recoverable  only  for  proximate  losses,  34. 

dii'ect  and  consequential  losses,  34. 

proximate  and  remote  consequences  m  general,  34. 

always  recoverable  for  direct  losses,  36. 

direct  losses,  30. 

direct,  but  unexpected,  consequences,  37. 
consequential  losses,  3'J. 

proximate  and  remote  consequential  losses,  39. 
illustrations  of  proximate  and  remote  consequences,  45. 
avoidable  consequences  remote,  47. 
intervention  of  third  persons,  47. 

damages  recoverable  for  natural  and  probable  consequences,  48. 
consequential  damages  for  torts,  48,  49. 
consequential  damages  for  breach  of  contract.  48,  51. 
Hadley  v.  Baxendale,  53. 

damages  arising  under  ordinary  circumstances,  56. 

damages  arising  from  circumstances  not  contemplated,  58. 

notice  of  special  circumstances,  60. 

losses  on  subcontracts,  60  (note). 

general  result  of  Hadley  v.  Baxendale,  63. 

motive  inducing  breach  of  contract,  63. 

contract  to  convey  land,  effect  of  bad  faith,  64. 
avoidable  consequences,  64. 

applications  and  illustrations,  66. 

rule  of  contributory  negligence  distinguished  from  thai  of  av  liO.able 
consequences,  68. 
the  required  certainty  of  damages,  7\). 
amount  of  loss  must  be  shown,  70. 
profits  or  gains  prevented,  12. 
profits,  illustrations,  73. 
loss  of  personal  property,  wliolesale  market  value,  the  measure  of, 

76. 
prospective  gains  from  jjropeity  totally  destroyed,  76. 
entirety  of  demand,  recovery  in  single  action,  77. 

time  to  wliicli  compensation  iiiny  be  recovered,  past  and  future  losses,  78. 
repetition  of  wrong.  78. 

continuing  torts  and  breaches  of  contract.  78. 
damages  caused  by  permanent  structures,  82. 
authorized  conduct,  83. 
forbidden  conduct,  83. 

trespass,  83. 
conduct  neither  authorized  nor  forbidden,  85. 


440  INDEX. 

[The  figures  refer  to  pages.J 

COMPENSATOllY  UAMAUES— Contiuuod, 
elements  of  compeusatiou,  SU. 
pecuniary  losses,  87. 

expenses  of  litigation.  87. 
counsel  fees,  87. 
expenses  of  prior  litigation,  89. 
physical  pain  and  inconvenience,   91. 
uieutal  suffering,  92. 

mental  suftoring  as  the  basis  of  a  cause  of  action.  02. 
mental  suffering  iu  actions  of  tort,  95. 

mental  suffering  iu  personal  injuiy  cases,  93  luote). 
indecent  assault,  mental  suffering,  9G  (note), 
civil  damage  laws,  9G  (note), 
assault  aud  battery,  9U  (note), 
injury  to  child,  recovery  by  parent,  96  (note), 
injuiy  to  realty  and  personalty,  97  (note), 
ejection  of  passenger,  97  (note), 
false  imprisonment,  98  (note),  101. 
malicious  prosecution,  98  (note), 
libel  and  slander,  99  (note), 
criminal  conversation,  99  (note). 
Beduction.  99  (note). 
abJuction  of  children,  100  (note), 
prospective  mental  suffering,  100  (note), 
indignities  to  corpse,  101. 
mental  suffering  in  actions  of  contract,  102. 

actions  against  telegraph  companies,  103. 
kinds  of  mental  injuiy  compensated,  105. 

damages  for  mental  suffering  compensatory,  not  exemplary,  100. 
aggravation  and  mitigation  of,  107. 
reduction  of  loss,  114. 

reparation  preventing  actual  loss,  114. 
reparation  accepted,  116. 
reparation  by  third  party,  117. 
Injuries  to  limited  interests,  118. 

interests  in  real  property  in  possession  and  In  expectancy,  118. 
special  property  and  ultimate  ownership  iu  personal  properly,  119. 
interest  of  mortgagors  and  mortgagees,  120. 
joint  interests,  120. 
on  penal  bonds,  122. 
li(iuidated  damages  aud  penalties.  123. 
liciuidated  damages,  rules  of  construction,  127. 
for  breach  of  alternative  contract,  141. 


INDEX  441 

[The  figures  refer  to  pas>»s.J 

COMrENSATORY  DAMAGES— Continued, 
for  nonpayment  of  money,  interest,  144. 
Interest,  151. 

on  nonpecuniary  losses,  152. 

on  pecuniary  losses,  liquidated  demands,  153. 
interest  on  taxes,   15G   (note;. 

on  pecuniary  losses,  unliquidated  demands,  157. 

interest  where  defendant  not  responsible  for  delay,  168. 

compound  interest,  171. 
value,  176. 

peculiar  to  owner,  182. 

highest  intermediate  value,  186. 

medium  of  payment,  legal  tender,  195. 

contract  to  pay  in  commodities,  198. 
may  be  either  general  or  special,  224. 
breach  of  contract  for  sale  of  goods,  237. 
in  actions  against  carriers,  251. 
in  actions  against  telegraph  companies,  264. 
for  wrongs  affecting  real  property,  352. 
for  death  by  wrongful  act,  297. 
for  breach  of  marriage  promise,  372. 

COMPOUND  INTEREST, 
when  recoverable,  171. 

CONDEMNATION  PROCEEDINGS, 
interest  as  damages,  167. 
value,  time  and  place  of  assessment,  185. 

CONDUCT  AT  PERIL, 

liability  for  damage  by  conduct  done  at,  21, 

CONSEQUENTIAL  DAMAGES, 

direct  and  consequential  losses,  35. 

direct  losses,  36. 

defined,  30. 

consequential  losses  in  general,  39. 

proximate  and  remote  consequential  losses,  39. 

illustrations  of  proximate  and  remote  consequences,  45. 

effect  of  intervention  of  third  persons,  47. 
■  avoidable  consequences,  47. 
damages  recoverable  for  natural  and  probable  consequences,  48. 
consequential  damages  for  torts,  48,  49. 
consequential  damages  for  breach  of  contract.  48.  51. 

damages  arising  under  ordinary  circumstances.  .^6. 

damages  arising  from  circumstances  not  conteinpiated,  58. 


442  INDEX. 

[The  figures  refer  to  pages.] 

CONSEQUENTIAL  DAMAGES— Continued, 

tor  delay  in  deliveriug  cipher  telegrams,  59 

contraets,  motive  iudueing  breaeh,  03. 

Hadley  v.  Baxendale,  63. 
avoidable  consequences,  64. 

applications  and  illustrations,  66. 

limitations  of  rule,  68. 
In  actions  against  carriers,  256. 
In  actions  against  telegraph  companies,  267. 
trespass  to  real  property,  360. 

CONSTITUTIONAL  LAW, 

exemplary  damages  for  conduct  which  is  also  a  crime,  204  (note), 
constitutionality  of  statutes  giving  action  for  death  by  wrongful  act,  20!>. 

CONTEMPLATED  CONSEQUENCES, 

damages  for  torts  need  not  be  actually  contemplated,  50. 
of  breach  of  contract,  51. 
Hadley  v.  Baxendale,  53. 

CONTINUING  TORTS, 

damages  for,  78. 
illustrations,  80. 

CONTRACTS, 

damages  for  direct  losses  always  recoverable,  33. 
contemplation  of  consequences  of  breach,  48. 
consequential  damages  for  breach,  51. 
Hadley  v.  Baxendale,  rule  of  damage,  53. 

damages  arising  from  ordinary  circumstances,  56. 

damages  arising  under  ordinary  circumstances,  56. 

damages  arising  from  circumstances  not  contemplated,  58. 
losses  on  subcontracts,  60  (note). 

notice  of  special  circumstances,  00. 

general  result  of  Hadley  v.  Baxendale,  63. 

motive  inducing  breach,  03. 

fraud  in  contract  to  convey  land,  effect,  64 
damages  for  continuing  breach  of,  78. 

covenants  for  support  and  maintenance,  damages  for  breach,  80  (note), 
for  sale  of  goods,  see  "Sale  of  Goods." 
damages  for  breach,  expenses  of  litigation,  87. 
mental  suffering  in  actions  of,  102. 
liquidated  damages  and  penalties,  123. 

liquidated  damages  for  delay  in  pei-formance  of.  134. 

not  to  carry  on  business,  liquidated  damages  for  breach,  134, 
alternative  contracts,  damages  for  breach,  141. 


INDEX.  443 

[The  figures  refer  to  pages.] 

CONTRACTS-Continued, 

interest  by  contract  a  debt,  145. 

payable  in  gold,  damages  for  breach,  196. 

general  and  special  damages  for  breach,  227. 

actions  against  telegraph  companies  tort  or  contract,  267. 

to  sell  real  property,  breach  by  vendor,  364. 

to  sell  real  property,  breach  by  vendee,  366. 

CONTRIBUTORY  NEGLIGENCE, 

rule  of,  distinguislaed  from  avoidable  consequences,  68, 
CONVERSION, 

see,  also,  "Trover." 

value,  time,  and  place  of  assessment,  185. 

highest  intermediate  value,  186. 

sale  of  goods,  damages  as  for,  246. 

CORPORATIONS, 

refusal  to  transfer  stock,  highest  intermediate  value,  187. 
liability  for  exemplary  damages,  218. 

CORPSE, 

damages  for  mental  suffering  caused  by  mutilation  of,  lOL 

COSTS, 

nominal  damages  to  carry  costs,  30. 

of  litigation  not  recoverable  as  damages,  88. 

of  prior  litigation  as  damages,  89. 

COUNSEL  FEES, 

compensation  for  not  recoverable,  87. 

expenses  of  prior  litigation,  89. 

in  prior  litigation  as  damages,  89. 

recovery  for,  in  action  for  breach  of  covenant,  368. 

COURT, 

see  "Province  of  Court  and  Jury." 

COVENANTS, 

damages  for  breach,  seisin,  and  right  to  convey,  367. 
warranty  and  quiet  enjoyment,  368. 
against  incumbrances,  369. 
in  leases,  371. 

CRIMES, 

exemplary  damages  wlioro  tort  is  also  a  crime,  207,  215. 

CRIMINAL  CONVERSATION, 

damages  for  mental  suffering,  99  (note), 
exemplary  damages,  215. 


444  INDEX. 

[The  figures  refer  to  pages.] 

CROP, 

damages  for  breach  of  warranty  of  seeds,  75. 
damages  for  loss  of  unmatured  crop,  7G. 


D 

DAMAGES. 

see    ''Compensatory   Damages";    "Exemplary   Damages";    "Nominal 
Damages." 
definition  and  nature,  1. 
a  species  of  property,  2. 
assignability,  2. 

right  to,  protected  by  constitutional  guaranties,  2. 
right  to,  vests  immediately  on  commission  of  wrong,  2. 
common-law  theory  of,  3. 

compensation,  not  restitution,  the  measure  of,  3. 
exemplary  damages,  6. 
mixed  question  of  law  and  fact,  7. 
recoverable  only  for  violation  of  legal  rights,  7. 
classification  of,  23. 

nominal  damages,  definition  and  general  nature,  24. 
awarded  only  when  law  presumes  damage,  24. 
de  minimus  non  curat  lex,  24,  27. 

will  not  support  action  when  damages  are  of  the  gist,  24. 
nominal  damages  against  public  oflacers  for  neglect  of  duty,  27  (note), 
nominal  damages  establish  rights,  29. 
new  trial  and  costs,  30. 
compensatory  damages,  defined,  32. 
when  amount  a  question  of  law,  33. 
when  amount  a  question  for  jury,  34. 
compensation  recoverable  only  for  proximate  losses,  34. 
proximate  and  remote  consequences  in  general,  34. 
direct  and  consequential  losses,  35. 
direct  losses,  36. 

compensatory  damages  always  recoverable  for  direct  losses,  36. 
consequential  losses,  39. 

proximate  and  remote  consequential  losses,  39. 

illustrations,  45. 

avoidable  consequences,  47. 

compensation  recoverable  for  natural  and  probable  consequences, 

48. 
consequential  damages  for  torts.  48,  49. 
consequential  damages  for  breach  of  contract,  48,  51. 


INDEX.  445 

[The  figures  refer  to  pages.] 

DAilAGES— Continued, 

Hadley  v.  Baxendale,  53. 

damages  arising  under  ordinary  circumstances,  56. 
damages  arising  from  circumstances  not  contemplated,  58. 
notice  of  special  circumstances,  60. 
losses  on  subcontracts,  60  (note), 
general  result  of  Hadley  v.  Baxendale,  63. 
motive  inducing  breach  of  contract,  63. 
for  avoidable  consequences,  64. 

applications  and  illustrations,  66. 
the  required  certainty  of  damages,  70. 
amount  of  loss  must  be  shown,  70. 
profits  or  gains  prevented,  72. 
illustrations,  73. 

prospective  gains  from  property  totally  destroyed,  76. 
entirety  of  demand,  recovery  in  single  action,  77. 

time  to  which  compensation  may  be  recovered,  past  and  future  losses,  78. 
repetition  of  wrong,  TS. 

continuing  torts  and  breaches  of  contract,  78. 
damages  caused  by  permanent  structures,  S2. 
elements  of  compensation,  86. 
pecuniary  losses,  87. 

expenses  of  litigation,  87. 
counsel  fees,  87. 

expenses  of  prior  litigation,  89. 
physical  pain  and  inconvenience.  91. 
mental  suffering.  92. 

mental  suffering  as  the  basis  of  a  cause  of  action,  92, 
mental  suffering  in  actions  of  tort,  95. 
personal  injuiy  cases,  95  (note), 
under  civil  damage  laws,  96  (note), 
assault  and  battery,  96  (note). 
Indecent  assault,  96  (note). 
Injury  to  child,  recovery  by  parent,  96  (note). 
Injury  to  realty  and  personalty,  97  (note), 
ejection  of  passenger,  97  (note). 
false  imprisonment,  98  (note), 
malicious  prosecution,  98  (note), 
libel  and  slander,  99  (note), 
criminal  conversation,  99  (note), 
seduction,  99  (note), 
abduction  of  children,  100  (note), 
prospective  mental  sutT'ering,  100  (nolo). 


446  INDEX. 

[The  figures  refer  to  pages.] 

DAMAGES— Continued, 

lor  assiiult,   101. 
indignities  to  corpse,  101. 
mental  suffering  in  actions  of  contract,  102. 
actions  against  telegraph  companies,  103. 
kinds  of  mental  injury  compensated,  105. 
for  mental  suffering  compensatory,  not  exemplary,  100. 
aggravation  and  mitigation  of,  107. 
reduction  of  loss,  114. 

reparation  preventing  actual  loss,  114. 

injured  party  cannot  be  compelled  to  accept  specific  reparation,  114. 
reparation  accepted,  116. 
reparation  by  third  party,  117. 
Injuries  to  limited  interest,  118. 

interests  in  real  property  in  possession  and  in  expectancy,  IIS. 
special  property  and  ultimate  ownership  in  personal  property,  119. 
interest  of  mortgagors  and  mortgagees,  120. 
joint  interests,  120. 
on  penal  bonds,  122. 
liquidated  damages  and  penalties,  123. 
rules  of  construction,  127. 
breach  of  contract  of  sale,  134. 
for  breach  of  marriage  promise,  134. 
for  disclosure  of  trade  secrets,  135. 
liquid;! ted  damages  for  failure  to  abate  nuisance,  135. 
stipulated  sum  where  damages  are  certain,  137. 
for  breach  of  alternative  contract,  141. 
nonpayment  of  money,  interest,  144. 
Interest,  as  a  debt  and  as  damages,  145. 
interest  as  damages,  147. 
interest,  general  rule,  151. 
interest  on  noupecuniary  losses,  152. 
interest  on  pecuniary  losses,  liquidated  demands.  153. 
interest  on  taxes,  156  (note), 
for  vexatious  appeal,  inierest,  157. 
interest  on  pecuniary  losses,  unliquidated  demands,  157. 
contracts,  160. 
torts,  162. 
interest  where  defendant  not  responsible  for  delay.  168. 
compound  interest,  171. 
value,  definition,  176. 

value  of  stocks,  bonds,  and  other  securities,  ISl  (uote). 
value  peculiar  to  owner,  182. 


INDEX.  447 

[The  figures  refer  to  pages.] 

DAMAGES— Contiuued, 

value  of  good  will  of  established  business,  182. 

time  and  place  of  assessment,  185. 
condemnation  proceedings,  185. 
for  conversion,  185. 
breach  of  contract  of  sale,  186. 
highest  intermediate  value,  186. 

medium  of  payment,  legal  tender,  195. 

contracts  payable  in  gold,  196. 

foreign  currency,  value,  197. 

alternative  medium  of  payment,  damages  for  breach,  198. 

contract  to  pay  in  commodities,  198. 

mercantile  securities,  198. 
exemplary  damages,  200. 

liability  of  principal  for  act  of  agent,  217. 
pleading  and  practice,  221. 

allegation  of,  the  ad  damnum,. 221. 

cannot  exceed  amount  pleaded,  221. 

form  of  statement,  223. 

general  damages  defined,  223. 

special  damages  defined,  223. 
excessive  and  inadequate  damages,  230. 

remitting  excess,  234. 
breach  of  contract  for  sale  of  goods,  237. 

see,  also,  "Sale  of  Goods." 
in  actions  against  carriers,  251, 

see,  also,  "Carriers." 
In  actions  against  telegraph  companies,  264. 

see,  also,  "Telegraph  Companies." 
for  death  by  wrongful  act,  297. 
wrongs  affecting  real  property,  352, 

see,  also,  "Real  Property." 
for  detention  of  dower,  355. 
breach  of  marriage  promise,  372. 

DAMNUM  ABSQUE  INJURIA, 
meaning  of  phrase,  7. 
damages  not  recoverable  for,  7. 
damage  incident  to  authorize  conduct,  12-15. 

DEATH  BY  WRONGFUL  ACT. 
the  rule  at  common  law,  297. 
history  of  rule,  297. 
reason  of  rule,  298. 
conslilutiouality  of  statutes,   299. 


•i-i^  INUEX. 

[Tlu>  O^ures  refer  to  pages.] 

DEATH  BY  WRONGFUL  ACT— Continued, 
damages  lor  pecuuiarj'  loss,  '600. 
strict  and  liberal  construction  of  statute,  300. 
no  damages  for  solatium,  301. 
exemplary  damages,  304. 
damages  for  iujuiy  to  deceased,  300. 
medical  and  funeral  expenses,  308. 
meaning  of  pecuniary,  309. 
prospective  pecuniary  losses,  310. 

future  care  and  support,  311. 

evidence  showing  value  of  future  care  and  support,  312-314, 

action  by  widow,  evidence  of  number  of  children,  315. 

loss  of  education  and  personal  training,  31G. 

future  services,  317. 
death  of  wife,  317. 
death  of  minor  child,  319. 

expectancy  of  benefit  after  majority,  325. 

prospective  gifts,   328. 

death  of  adult  child,  328. 

death  of  parent  of  adult  child,  333. 

death  of  collateral  relative,  334. 

prospective  inheritance,  334. 
evidence  of  pecuniary  condition  of  beneficiaries.  338. 
expectation  of  life,  life  tables.  339. 
interest  as  damages,  341. 

interest  in  action  for  death  of  husband,  166  (note), 
reduction  of  damages,  341. 
discretion  of  jury,  343. 

New  York  rule,  344. 

excessive  verdict,  reduction  of  amount,  347. 

Inadequate  verdict,  347. 
nominal  damages,  348. 
allegation  of  damages,  349. 

DEFAMATION, 

words  causing  mental  suffering  alone  are  not  actionable.  94. 

exemplary  damages,  214. 

general  and  special  damages.  226. 

injuiy  to  reputation  in  action  for  breach  of  marriage  promise,  373. 
DELAY, 

in  transportation,  damages  against  carrier.  255. 

in  carriage  of  passengers,  damages  for,  260. 

DE  MINIMUS  NON  CURAT  LEX, 
application  of  maxim,  24,  27. 


INDEX.  449 

[The  figures  refer  tc  pages.] 


DEMURRAGE, 

when  a  natural  consequence  of  broach  of  contract,  59. 
DETES'UE, 

highest  intermediate  value,  187. 
DOWEK. 

damages  tor  detention  of,  '6oo. 


E 

INJECTION, 

of  passenger,  damages  for,  2G1. 

EJECTMENT, 

whether  damages  recoverable  in,  352. 

EMINENT  DOMAIN, 

interest  as  damages,  167. 

value,  time  and  place  of  assessment,  1S3. 

ENTIRETY  OF  DEMAND, 

damages  from  single  cause  of  action  must  be  recovered   in   single  ac- 
tion, 77. 
past  and  future  losses,  78. 

EVIDENCE, 

to  show  value  of  future  care  and  support,  312. 

of  number  of  children  in  action  for  death  by  wrongful  act,  31."). 

of  pecuniaiy  condition  of  beneticiaries,  death  by  wrongful  act.  338. 

expectation  of  life,  life  tables,  339. 

breach  of  marriage  promise,  defendant's  financial  and  social  ijositiou,  373. 

EXCESSIVE  da:\iages, 

province  of  court  and  jury,  230. 

death  by  wrongful  act,  reduction  of  amount,  347. 

action  for  breach  of  marriage  promise,  374. 

EXEMPLARY  DAMAGES, 

defined,  200. 

exception  to  common-law  theoiy,  3,  G. 

nature  and  origin  of  doctrine,  200. 

conflict  of  authorities,  200. 

criticism  of  the  doctrine,  203. 

jurisdiction  in  which  not  recoverable,  205. 

Jurisdictions,  where  recoverable,  200. 

damages  for  mental  suffering  compensatoiy,  not  exemplary,  lOG. 

liability  to  does  not  survive,  207. 

when  recoverable,  207. 

where  tort  is  also  a  crime,  201,  207,  215.  , 

I.AWDAM,— 29 


450  INDEX. 

[The  figures  refer  to  pages.] 

EXEMPLARY  DAMAGES— Continued, 

uot  recoverable  unless  conduct  otherwise  actionable,  208. 

actual  malice,  209. 

in  action  against  joint  wrongdoers,  209. 

fraud,  210. 

gross  negligence,  210. 

oppression,  brutality,  and  insult,  210, 

wantonness,  210. 

aggravation  and  mitigation,  107,  211. 

waived  by  coming  into  equity,  213  (note). 

in  what  actions  recoverable,  213. 

assault  and  battery,  214. 

defamation,  214. 

false  impi'isonment,  214. 

injuries  to  person  or  property,  214. 

libel  and  slander,  214. 

malicious  prosecution,  214. 

trover,  215. 

for  breach  of  marriage  promise.  207,  378. 

in  action  on  statutory  bond,  207. 
in  actions  against  carriers  of  passengers,  2.59. 
in  actions  against  telegraph  companies,  295. 
in  action  for  death  by  wrongful  act,  304. 
trespass  to  real  property,  360. 
liability  of  principal  for  act  of  agent    21". 
liability  of  corporations,  218. 
need  not  be  specially  pleaded.  224. 
province  of  court  and  jury,  212,  235. 
setting  aside  excessive  verdict,  236. 


F 

FALSE  IMPRISONMENT, 

damages  for  mental  suffering.  98  (note),  101. 
aggravation  and  mitigation  of  damages,  109. 
exemplary  damages,  214. 

FINES  AND  PENALTIES, 
interest  on,  150  (note). 

FLOWAGE, 

of  lands,  nominal  damages  for,  27. 

FORBIDDEN  CONDUCT, 
damages  incident  to,  15. 


INDEX.  451 

[The  figures  refer  to  pages.] 

FRAUD, 

ground  for  exemplary  damages,  207. 

FRIGHT, 

damages  for,  94  (note),  260. 

FUNERAL  EXPENSES, 

as  element  of  damage  in  action  for  death  by  wrongful  act,  308. 


G 

GIFTS, 

loss  of  prospective  gifts,  death  by  wrongful  act,  328. 
GOOD  WILL, 
value  of,  182. 

H 

HADLEY  V.  BAXENDALE, 

damages  for  breach  of  contract,  53. 

three  rules  deduced  from,  55. 

criticism  of  rule  declared,  55  (note). 

damages  arising  from  circumstances  not  contemplated,  58. 

notice  of  special  circumstances,  60. 

general  result  of,  63. 

HIGHEST  INTERMEDIATE  VALUE, 
see  "Value." 

HUSBAND  AND  WIFE, 

damages  for  mental  suffering  for  alienation  of  husband's  affections,  99 

(note). 

I 

IMPROVEMENTS, 

deductions  for,  in  action  for  detention  of  real  property,  354. 

INADEQUATE  DAMAGES, 

province  of  court  and  jury,  230. 

death  by  wrongful  act,  347. 

action  for  breach  of  marriage  promise,  374. 

INCONVENIENCE, 
comix'nsation  for,  91. 

INCUMBRANCES, 

covenants  a>;ainst,  damnges  for  broach.  309. 

INIIERITAXCE, 

loss  of  prospective  inheritance,  death  by  wrongful  act,  334. 


452  INDEX. 

[Tb'e  figures  refer  to  pages.] 

IX  JURE  NON  REMOTA  CAUSA  SED  PUOXIMA  SPECTATUR, 
maxim  explained,  34. 

INJURIA  SINE  DAMNO, 
meaning  of  phrase,  7. 

INTEREST, 

stipulations  in  evasion  of  usury  laws,  liquidated  damages  or  penalties, 

141. 
definition,  144. 

as  a  debt  and  as  damages,  145. 
the  English  doctrine,  145. 
interest  by  agreement,  146. 
interest  as  damages.  147. 

discretion  of  jury,  147. 
on  mercantile  securities,  147. 
the  American  doctrine,  147. 
interest  as  a  debt,  148. 
Interest  as  damages,  149. 
rate,  150. 

must  be  recovered  with  the  principal,  150. 
general  rule,  151. 
on  nonpecuniary  losses,  152. 
pecuniary  losses,  liquidated  demands,  1.53. 

recoverable  on  notes  after  maturity,  154  (note), 
where  defendant  not  responsible  for  delay,  154  (note). 
*  between  verdict  and  judgment,  156  (note), 

on  fines  and  penalties,  156  (note), 
on  judgments,  156  (note), 
on  taxes,  156  (note), 
for  vexatious  appeal,  157. 
pecuniary  losses,  unliquidated  demand,  157. 
contracts,   1(J0. 

damages  made  certain  by  computation  or  reference  to 

recognized  standards,  160. 
demand  for  accounting,  commencement  of  suit,  161. 
torts.  162. 

on  discretionary  damages,  163. 

property  destroyed,  taken,  converted,  and  the  like,  163, 
province  of  court  and  jury,  163. 
destruction  by  negligence,  165. 
on  property  losses  in  general,  165. 
condemnation  proceedings,  167. 
on  overdue  paper,  contract  and  statute  rate.  1(>S. 
where  defendant  not  responsible  for  delay,  16S. 


INDEX.  4o3 

[The  figures  refer  to  pages.] 

INTEREST— Continued, 
compound  interest,  171. 

as  damages  in  action  for  death  by  wrongful  act,  341. 
as  damages  for  detention  of  real  property,  353. 

INTOXICATING  LIQUORS, 

civil  damage  laws,  damage  for  mental  suffering,  96  (note), 
liquidated  damages  for  breach  of  contract  to  abstain  from,  l-iO  (note). 


J 

JOINT  WRONGDOERS, 

liability  to  exemplary  damages,  209. 

JUDGMENT, 

interest  on,  156  (note). 

interest  on  verdict  before,  156  (note). 

JURY, 

see  "Province  of  Court  and  Jury." 


LAWFUL  AND  UNLAWFUL  CONDUCT, 

analysis  of,  12. 

damage  incident  to  authorized  conduct,  12. 

forbidden  conduct,  15. 

conduct  forbidden  for  benefit  of  public,  16. 
conduct  neither  authorized  nor  forbidden,  19. 

malicious  conduct,  20. 

negligent  conduct,  21. 

conduct  at  peril,  21. 
analysis  of  legal  wrongs,  23. 

LEASES, 

covenants  in,  damages  for  breach,  371. 

LEGAL  TENDER  ACT, 
damages  under,  195. 
result  of  decisions,  196. 

LEGAL  WRONGS, 

see  "Wrong  and  Damage." 

LIBEL  AND  SLANDER, 

words  causing  mental  suffering  alone  not  actionable,  94. 
damages  for  iiu'ntal  suffering,  !)!»  (note). 
aggravation  and  mitigation  uf  damiiges,  110. 


45-4  INDEX. 

[The  figures  refer  to  pages.] 

LIBEL  AND  SLANDER— Continued, 

provocation,  110. 

common-law  retraction,  111, 

honest  belief,  rumors,  111. 

plaintiff's  character  and  position,  113. 
exemplary  damages,  214. 
general  and  special  damages,  22G. 

LIFE  TABLES, 

evidence  of  expectation  of  life,  ooO. 

LIQUIDATED  DAMAGES, 
in  general,  122. 
defined,  123. 
penalties,  123. 

equity  will  not  relieve  against,  124, 
intent  of  parties,  124. 
distinction  between  intent  to  liquidate  and  intent  that  sum  named  shall 

be  paid,  126. 
must  be  estimated  on  basis  of  just  compensation,  126. 
contract  for  distinguished  fi-om  penal  bond,  127. 
general  rule  of  construction,  form  of  contract,  127,  129. 
contract  in  the  alternative,  129. 
contract  in  form  of  common-law  bond,  129. 
contract  providing  for  liquidated  damages  in  terms,  130. 
contract  providing  for  penalty  in  terms,  130. 
collateral  sum  in  terrorem,  130. 
sum  payable  on  nonpayment  of  smaller  sum,  131. 
sum  stipulated  not  proportioned  to  injury,  132. 
stipulated  sum  where  damages  are  uncertain,  133. 
breach  of  agreement  not  to  cari-y  on  business,  134. 
breach  of  contract  of  sale,  13-4. 
for  breach  of  marriage  promise,  134. 
for  delay  in  performance  of  conti'act,  134. 
for  disclosure  of  trade  secrets,  135. 
for  failure  to  abate  nuisance,  135. 
stipulated  sum  where  damages  are  certain,  137. 
sum  deposited  to  be  forfeited  on  breach,  138. 
sum  stipulated  for  breach  of  contract  for  several  things.  1.38. 
partial  breach,  140. 
for  breach  of  contract  to  abstain  from  intoxicating  liquors,  140  (note), 
alternative  contract  not  a  contract  for,  141. 
stipulations  in  evasion  of  usury  laws,  141. 
interest  on,  153. 


INDEX.  455 

[The  figures  refer  to  pages.] 


LORD  CAMPBELL'S  ACT. 
death  by  wrongful  act,  29'J. 


M 

MALICE, 

exeraplary  damages  recoverable  for  malicious  torts,  207. 

MALICIOUS   CONDUCT, 

liability  for  damage  by,  20. 

MALICIOUS  PROSECUTION, 

damages  for  mental  suffering,  98  (note), 
exemplary  damages,  214. 
pleading  of  special  damage,  226. 

MARKET  VALUE, 
defined,  178. 
evidence  of  real  value,  178,  180. 

MARRIAGE. 

see  "Breach  of  Marriage  Promise." 
MASTER  ANT)  SERVANT, 

damages  for  discharge,  duty  to  seek  other  employment,  67. 
MEDICAL  EXPENSES, 

as  element  of  damage  in  action  for  death  by  wrongful  act,  308. 

MENTAL  SUFFERING, 
compensation  for,  92. 
as  the  basis  of  a  cause  of  action.  92. 
in  actions  of  tort,  95. 

action  for  personal  injuries,  95  (note). 

indecent  assault,   90   (note). 

assault  and  batteiy,  96  (note). 

injuiy  to  child,  recovery  by  parent,  96  (note). 

ejection  of  passenger  by  carrier,  97  (note). 

for  injury  to  realty  and  personalty,  97  (note). 

for  malicious  prosecution,  98  (note). 

for  false  imprisonment,  98  (note),  101. 

for  libel  and  slander,  99  (note). 

criminal  conversation,  99  (note). 

a1)duction  of  cliildren,  100  (note) 

for  indignities  to  corpse,  101. 
In  actions  of  contract,  102. 

in  actions  against  telegraph  companies,  103. 
kinds  of  mental  injury  compensated,  105. 
damages  for,  compensatory,  not  exemplary,  100. 


4o6  INDEX. 

[The  figures  refer  to  pages.] 

MENTAL  SUFFERING— Continued, 

damages  for.  in  actions  against  carriers,  259. 
damages  for,  in  action  for  death  by  wrongful  act,  301. 
in  action  for  breacli  of  marriage  promise,  373. 

MERCANTILE  SECURITIES, 
interest  on,  147. 

MITIGATION  OP  DAMAGES, 

see  "Aggravation  and  Mitigation." 

MONEY, 

damages  for  nonpayment  measured  by  interest,  144. 
means  "coin"  in  absence  of  statutes,  195. 

MOTIVE, 

inducing  breach  of  contract  immaterial,  63. 

MUNICIPAL  CORPORATIONS, 

liability  for  interest,  154  (note). 

N 

NATURAL  AND  PROBABLE  CONSEQUENCES, 
of  torts  and  breaches  of  contract,  48. 
what  are  natural  consequences,  48. 

NEGLIGENCE, 

causing  mental  suffering  alone  not  actionable,  94. 
exemplary  damages  recoverable  for  gross  negligence,  207. 
liability  for  damage  by,  21. 

NEGOTIABLE  INSTRUMENTS, 

interest  on  overdue  paper,  contract  and  statute  rate,  IGS. 

value,  181. 

value  of  promissory  note,  180. 

maker  cannot  show  his  own  insolvency,  181. 

NEW  TRIAL, 

for  error  in  regard  to  nominal  damages,  30. 

for  inadequate  or  excessive  damages,  death  by  wrongful  act,  347. 

NOMINAL  DAMAGES, 

definition  and  general  nature,  24. 

awarded  only  when  law  presumes  damage,  24. 

de  minimus  non  curat  lex,  24,  27. 

will  not  support  action  when  damages  are  of  the  gist,  24. 

against  public  officers  for  neglect  of  duty,  27  (note). 

establish  rights,  29. 


INDEX.  457 

IThe  figures  refer  to  pages.] 


NOMINAL  DAMAGES— Continued, 
new  trial  and  costs,  30. 
need  not  be  specially  pleaded,  224. 
in  action  for  death  by  wrongful  act,  348. 
for  nuisance  to  real  property,  362. 

NONPECUNIARY  INJURIES, 
province  of  court  and  jury,  229. 

NUISANCE, 

a  continuing  tort,  damages  for,  80. 

damages  for  nuisance  by  permanent  structure,  85. 

liquidated  damages  for  failure  to  abate,  134. 

to  real  property,  damages,  361. 

when  nominal  damages  recoverable,  362. 


O 

OFFICERS, 

public,  nominal  damages  for  neglect  of  duty,  27  (note). 


P 

PAIN, 

compensation  for  physical  pain,  91. 

PARTNERSHIP, 

damages  for  breach  of  contract  of  partnership,  75. 

PASSENGERS, 
see  "Carriers." 

PAST  AND  FUTURE  LOSSES, 

time  to  which  compensation  may  be  recovered,  78. 

repetition  of  wrong,  78. 

continuing  torts  and  breaches  of  contract,  78. 

illustrations,  80. 
damages  for  nuisance,  80. 
damages  caused  by  permanent  structures,  82. 

authorized  conduct,  83. 

forbidden  conduct,  83. 
trespass,  83. 

conduct  neither  authorized  nor  forbidden,  85. 
death  by  wrongful  act,  prospective  pecuniary  losses,  310. 
prospective  mental  suffering,  100  (note). 

PATENTS, 

counsel  fees  In  patent  suits,  88  (note). 


458  INDEX. 

[The  figures  refer  to  pages.J 

PECUNIARY  LOSSES, 
damages  for,  87. 
expenses  of  litigation,  ST. 
counsel  fees,  87,  89. 
expenses  of  prior  litigation,  89. 

damages  for,  in  action  for  death  by  wrongful  act.  300. 
meaning  of  "pecuniary"  in  action  for  death  by  wrongful  act,  309. 
province  of  court  and  jury,  227. 

PENAL  BONDS, 
see  "Bonds." 

PEN.\LTIES, 

in  penal  bonds.  122. 

defined,  123. 

liquidated  damages  or,  123. 

intent  of  parties,  124. 

distinction  between  intent  to  liquidate  and  intent  that  sum  named  shall 

be  paid,  126. 
rules  of  construction,  127. 

general  rule  of  construction,  form  of  contract.  129. 
contract  in  form  of  common-law  bond,  129. 
contract  in  the  alternative,  129. 

contract  providing  for  liquidated  damages  in  terms,  130. 
contract  providing  for  penalty  in  terms,  130. 
collateral  sum  in  terrorem,  130. 
sum  payable  on  nonpayment  of  smaller  sum,  131. 
sum  stipulated  not  proportioned  to  injury,  132. 
stipulated  sum  where  damages  are  uncertain,  133. 
stipulated  sum  where  damages  are  certain,  137. 
sum  deposited  to  be  forfeited  on  breach,  138. 
sum  stipulated  for  breach  of  contract  for  several  things,  138. 
partial  breach,  140. 

stipulations  in  evasion  of  usury  laws,  141. 
trespass  to  real  property,  360. 

PERIL. 

conduct  at  peril,  21. 

PERSONAL  INJURY, 

damages  for  mental  suffering.  95  (note), 
liability  of  carriers,  260. 
exemplary  damages,  214. 
general  and  special  damages,  225. 

PERSONAL  SERVICES, 

damages  for  discharge,  duty  to  seek  other  employment,  67. 


INDEX.  459 

[The  figures  refer  to  pages.] 

PLEADING  AND  PRACTICE, 

allegation  of  damage,  the  ad  damnum,  221. 

damages  cannot  exceed  amount  pleaded,  but  may  be  k  .<?.  221. 

form  of  statement,  223. 

general  and  special  damages,  223. 

compensatory  damages  may  be  general  or  special,  224. 

genei-al  and  special  damages,  illustrations,  225. 

exemplary  damages  need  not  be  specially  pleaded,  225. 

province  of  court  and  jury,  227. 

pecuniary  injuries,  227. 

nonpecuniary  injuries,  229. 
excessive  and  inadequate  damages,  230. 

breach  of  marriage  promise,  374. 
setting  aside  verdict,  230. 
remitting  excess,  234. 
exemplary  damages,  235. 
death  by  wrongful  act,  nominal  damages,  348, 

allegation  of  damages,  349. 

PRETIUM  AFFECTIONIS, 
defined,  183. 
not  a  basis  for  compensation,  183. 

PRICE, 

see  "Value." 

PRINCIPAL  AND  AGENT, 

liability  of  principal  for  exemplary  damages,  217. 
PROFITS, 

damages  for  loss  of,  72. 

meaning  of  term,  72  (note). 

of  established  business,  74. 

prospective  gains  from  property  totally  destroyed,  76. 

damages  for  loss  of,  in  actions  against  telegraph  companies,  2C8. 

trespass  for  mesne  profits,  352. 
for  how  long  recoverable,  355. 

PROVINCE  OF  COURT  AND  JURY, 

damages  a  question  of  mixed  law  and  fact,  7. 

compensatory  damages,  when  a  question  for  court,  and  when  for  jury, 

33,  M. 
measure  of  damages  a  question  of  law  for  the  court,  227. 
pecuniary  injuries,  227. 
nonpecuniai*y  Injuries,  229. 
excessive  and   iiiMdcqnate  damages,  230. 
setting  aside  verdict,  2."i0. 


460  INDEX 

[The  figures  refer  tc  pages.] 

PROVINCE  OF  COURT  AND  JURY— Contiuued, 
proximate  aud  remote  cause,  40  (note), 
interest  as  damages,  149. 
discretion  of  jury,  147. 

interest  on  unliquidated  demands,  157. 
torts,  163. 
discretion  in  awarding  highest  intermediate  value,  193. 
as  to  exemplary  damages,  212. 
death  by  wrongful  act,  discretion  of  jury,  343. 

PROVOCATION, 

in  mitigation  of  exemplary  damages,  211.  ■ 

PROXIMATE  AND  REMOTE  CAUSE, 

only  proximate  consequences  compensated,  4,  34. 

not  capable  of  perfect  or  general  definition,  o4. 

proximate  and  remote  consequences  in  general,  34. 

direct  and  consequential  losses,  35. 

direct  losses,  36. 

direct  losses  necessarily  proximate,  36. 

direct,  but  unexpected,  consequences,  37. 

cousequential  losses,  39. 

consequential  losses  in  general,  39. 

effect  of  intermediate  cause,  39. 

illustrations,  43  (note), 
proximate  and  remote  consequential  losses,  39. 

illustrations,  45. 
questions  for  court  and  jury,  40  (note), 
avoidable  consequences,  47. 
intervention  of  third  persons,  47. 
cousequential  damages  for  contract,  48,  51. 
consequential  damages  for  tort,  48,  49. 
consequential  damages  for  breach  of  contract,  51. 
Hadley  v.  Baxendale,  53. 

damages  arising  under  ordinary  circumstances,  56. 
damages  arising  from  circumstances  not  contemplated,  58. 
notice  of  special  circumstances,  60. 
losses  on  subcontracts,  60  (note), 
general  result  of  Hadley  v.  Baxendale,  03. 
avoidable  consequence,  not  a  proximate  result,  64. 
actions  against  telegraph  companies,  268. 

remote  and  speculative  damages  in  actions  against  telegraph  companies, 
277. 

PUBLIC  OFFICERS, 

nominal  damages  for  neglect  of  duty,  27  (note). 


INDEX.  461 

[The  figm-es  refer  to  pages.] 


PUBLIC  WRONGS, 

private  action  for,  16,  18. 

PUNITIVE  DAMAGES, 

see  "Exemplary  Damages. 


E 


REAL  PROPERTY, 

damages  for  detention  of  real  property,  352. 
ejectment,  352. 
ti'espass  for  mesne  profits,  353. 

annual  value,  how  estimated,  353. 

interest,  353. 

deductions  for  improvements,  354. 

deductions  for  necessary  expenses,  354. 

costs  of  ejectment  suit,  355. 

for  how  long  profits  recoverable,  355. 
damages  for  detention  of  dower,  355. 
Injuries  to  real  property,  trespasses,  357. 
permanent  injuries,  357. 
temporary  injuries,  357. 
cost  of  repairing,  359. 
avoidable  consequences,  360. 
consequential  damages,  360. 
exemplary  damages  and  penalties,  360. 
nuisances,  361. 

when  nominal  damages  recoverable,  362. 
waste,  363. 
contracts  of  sale,  breach  by  vendor,  364. 
the  better  rule,  364. 

nominal  damages  only,  the  English  rule,  365. 
breach  by  vendee,  366. 
fraudulent  representations  by  vendor,  366. 
breach  of  covenants,  seisin,  and  right  to  convey,  367, 
the  consideration  as  the  measure,  368. 
warranty  and  quiet  enjoyment,  368. 
against  incumbrances,  369. 
the  value  at  eviction  as  the  measure,  369. 
eviction  total  or  partial,  370. 
permanent  incumbrances,  370. 
removable  incumbrances,  371. 
covenants  in  leases,  371. 

RECOUPMENT, 

damages  for  Itn-adi  of  wari-aiity,  217, 


462  INDEX. 

[The  figures  refer  to  pages.] 

REDUCTION  OF  DAMAGES, 

death  by  wrongful  act,  benefit  received,  341. 

REMEDIES, 

common-law  remedies,  1. 

REMITTER, 

of  excessive  damages,  234. 

REMOTE  CAUSE, 

see  "Proximate  and  Remote  Cause." 

REPLEVIN, 

interest  as  damages,  165  (note). 

highest  intermediate  value,  187. 

exemplary  damages,  215. 

sureties  on  bond  not  liable  for  exemplary  damages,  213  (note). 

RIGHTS, 

see  "Wrong  and  Damage." 


S 
SALE  OF  GOODS, 

damages  for  breach  of  warranty  of  seeds,  75. 

liquidated  damages  for  breach  of  contract,  134. 

value,  time  and  place  of  assessment,  185. 

nondelivery,  highest  intermediate  value,  187. 

action  by  seller  where  property  has  not  passed,  damages  for  nonaccept- 

ance,  237,  238. 
to  be  manufactured,  damages  for  nonacceptance,  239. 
where  property  has  passed,  damages  for  nonpayment,  240. 
action  by  buyer,  damages  for  nondelivery,  241. 
damages  where  there  is  market  price,  243. 
special  damages,  244. 

communication  of  special  circumstances,  244. 
damages  as  for  conversion,  246. 
damages  for  breach  of  warranty,  247. 
diminution  of  damages,  recoupment,  247. 

SALE  OF  LANDS, 

see  "Real  Property." 

SEDUCTION, 

damages  for  mental  suffering,  99  (note). 
exemplary  damages,  215. 

SEISIN, 

covenant  of,  damages  for  breach,  367. 


INDEX.  463 

[The  ligui-es  refer  to  pages.] 

SOLATIUM, 

damages  for  wounded  feeliugs  in  action  for  death  by  wrongful  act,  301. 

SPECULATIVE  DAJNIAGES, 
see  "Certainty." 

STOCKS, 
value,  181. 
highest  intermediate  value,  186. 

distinction  from  other  personal  property,  189  (note). 

damages  on  stock  contracts  in  Pennsylvania,  193. 

SUBCONTRACT. 

losses  on,  when  recoverable,  60  (note). 

SURETIES, 

on  bond  for  distress  warrant,  exemplary  damages,  213  (note). 

SURVIVAL, 

of  liability  to  exemplary  damages,  207. 


T 

TAXES, 

interest  on,  156  (note). 

TELEGRAPH  COMPANIES, 

consequential  damages  for  default  in  transmitting  cipher  telegrams,  59. 

damage  for  mental  suffering  for  breach  of  contract,  103. 

public  nature,  264. 

form  of  action  against,  264. 

action  by  sender,  2G.j. 

action  by  receiver,  260. 

compensatory  damages,  267. 

damages  for  natural  and  contemplated  consequences  only,  267. 

distinction  bt-twecu  tort  and  breach  of  contract  immaterial,  267. 

proximate  and  certain  damages,  268. 

losses  sustained  and  gains  prevented,  268. 

losses  sustained,  illustrations,  269. 

gains  prevented,  illustrations,  273. 

loss  of  unlawful  contract  or  gain,  276. 
remote  and  speculative  damages,  277. 

damages  not  contemplated,   notice  of  purpose  and   Importance  of  mes- 
sage, 282. 
cipher  messages,  289. 
abbreviations,  293. 

avoidable  consequences,  20.'?.  ^ 

exemplary  damages  agaiuHt,  295. 


464  INDKX 

[The  figures  refer  to  pages.] 

TIME, 

to  which  compensation  may  be  recovered,  78. 

TORTS, 

damages  for  direct  consequences  always  recoverable,  36,  37. 

consequential  damages  for,  49. 

damages  for  continuing  torts,  78. . 

damages,  expenses  of  litigation,  87. 

mental  suffering  in  actions  of  tort,  95. 

exemplary  damages  for  torts  which  are  also  crimes,  215. 

actions  against  telegraph  companies,  tort  or  contract,  267. 

TRADE  SECRETS, 

liquidated  damages  for  disclosui'e  of,  135. 

TREES, 

damages  for  destruction  of,  357. 

TRESPASS, 

when  a  continuing  or  completed  wrong,  81,  84. 

damages  for,  83. 

damage  by  permanent  structure,  83. 

mental  suffering  for  injury  to  realty  and  personalty,  97  (note). 

Interest  as  damages,  165  (note). 

to  real  property,  damages,  357. 

permanent  injuries,  357. 

temporary  injuries,  357. 

cost  of  repairing,  359. 

exemplai-y  damages  and  penalties,  360. 

TRESPASS  FOR  MESNE  PROFITS, 
damages,  353. 

costs  of  ejectment  suit,  353. 
for  how  long  profits  recoverable,  353. 
deductions  for  improvements,  354. 
deductions  for  necessary  expenses,  354. 

TROVER, 

see,  also,  "Conversion." 
damages  measured  by  value,  170. 
interest  as  damages,  165  (note), 
highest  intermediate  value  in  Pennsylvania,  193. 
exemplary  damages,  215. 


INDEX.  465 

[The  figures  i-efer  to  pages.] 


U 
USURY, 

stipulation's  in  evasion  of  usuiy  laws,  liquidated  damages  or  penalties, 
1-il. 

V 

VALUE, 

definition,  176. 
how  estimated,  176. 
maiket  value,  178. 
in  nearest  market,  179. 
of  property  in  course  of  manufacture,  179. 

defendant  cannot  show  that  article  was  intrinsically  of  no  ralue,  ISO. 
market  price  merely  evidence  of  value,  17S,  ISO. 
of  promissory  note,   180. 

of  pi'operty  for  which  there  is  no  market  value,  ISO. 
of  pass  for  life,  180  (note), 
stocks,  bonds,  and  other  securities,  181. 
bills  and  notes,  181  (note), 
bonds,  181  (note), 
stocks,  181  (note). 

when  intrinsic  value  may  be  shown,  181. 
good  will  of  established  business,  182. 
peculiar  to  owner,  182. 
pretium  affectionis,  183. 
time  and  place  of  assessment,  185. 
highest  intermediate  value,  186. 

objections  to  doctrine,  187. 

distinction  between  stocks  and  other  personal  property,  1S9  (note). 

applications  of  rule,  190. 
under  legal  tender  act,  195. 
medium  of  payment,  legal  tender,  195. 
foreign  currency,  197. 
alternative  medium  of  payment,  198. 
mercantile  securities,  198. 
of  contract  to  pay  in  commodities,  198. 

of  future  care  and  support  in  action  for  death  by  wron^'ful  act,  31L 
annual  value  of  real  property,  how  estimated,  863. 

VERDICT, 

interest  on  before  Judgment,  156  (note), 
setting  aside.  230. 

LAW  DAM. — 30 


46  6  INDEX. 

[The  figures  refer  to  pages.] 

VINDICTIVE  DAMAGES, 
see  "Exemplary  Damages." 


W 

WARRANTY, 

damages  for  breach  of.  that  cow  is  free  from  disease,  GO  (note), 
in  sale  of  goods,  damages  for  breach.  247. 
covenant  of,  damages  for  breach,  368. 

WASTE. 

damages  for,  3G3. 

WRONG  AND  DAMAGE, 

damages  recoverable  only  when  legal  rights  are  violated,  7. 

legal  rights  and  wrongs.  9. 

legal  rights  and  wrongs,  right  not  to  be  harmed.  U. 

damage  an  essential  element  of  legal  wrongs,  y-12. 

damage  incident  to  authorized  acts,  12. 

lawful  and  unlawful  conduct.  12. 

no  such  thing  as  injuria  sine  damuo.  12. 

damage  incident  to  forbidden  conduct.  15. 

public  wrongs.  18. 
conduct  neither  authorized  nor  forbidden,  19. 

malicious  conduct,  20. 

conduct  at  peril.  21. 

negligent  conduct,  21. 
analysis  of  legal  wrongs,  23. 


WEST    PUBLISBINU  CO.,  PRINTERS  AND  6TEREOTYPERS,  ST.  PAUL,  MU<N. 


€ffC  ^ovn6oo&  ^(tvm. 


CMOl 


tA 


This  series  is  to  comprise  elementary  treatises  on  all  the  principal 
subjects  of  the  law.  The  books  are  made  on  the  same  general  plan, 
in  which  certain  special  and  original  features  are  made  prominent. 
These  are: 

1.  A  brief  analytical  presentation  of  the  principles  and  rules  of  the 
subject.  This  part  is  distinguished  typographically  by  being  printed 
in  large  black  type,  and  these  black-letter  paragraphs,  running  through 
the  book,  constitute  a  complete,  though  concise,  synopsis  of  the  law 
of  the  subject.  Like  the  syllabus  of  a  case,  this  affords  a  bird's-eye 
view  of  the  whole  and  its  parts,  and  will  be  found  useful  by  the  lawyer 
who  wishes  to  refresh  his  memory  of  the  outlines  of  this  branch  of  the 
law. 

2.  A  Commentary,  being  a  more  extended  presentation  of  the  top- 
ics in  the  leading  analysis,  distinguished  by  being  set  in  different  type. 
The  typographical  separation  of  these  two  parts  enables  the  examiner 
to  obtain,  in  the  first  place,  a  general,  comprehensive  grasp  of  the  sub- 
ject as  a  whole,  and  of  the  relation  of  one  part  to  another,  and,  by  re- 
reading in  connection  with  the  more  extended  commentary,  to  hx  the 
details  clearly  in  mind. 

3.  Notes,  in  still  different  type,  containing  a  copious  citation  of 
authorities,  including  the  leading  and  most  important  cases.  These 
are  so  distinguished  as  to  still  further  illustrate  the  principles. 


PRICE,  $3.75   PER  VOLUME,  INCLUDING  DELIVERY. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


(1) 


(^^e  ff^ornfiooft  ^erice.) 


(^  ganbBooft  of 

€ffC  Saw  of  QBiffe  anb  (Tlo(e0> 


QSg  (prof.  C^cirfee  (p.  (Uorton. 


THIRD    EDITION. 


TABLE    OF    CONTENTS. 


Chapter  I. 

OF  NEGOTIABILITY  SO  FAR  AS  IT  RE- 
LATES TO  BILLS  AND  NOTES  :  Cover- 
ing the  oi-igin,  ymposo,  and  indicia  of  neso- 
dability,  distinction  between  negotiability 
and  assignability,  and  payment  by  negotia- 
ble instrument. 

Chapter  II. 

OF  NEGOTIABLE  BILLS  AND  NOTES, 
AND  THEIR  FOimAL  AND  ESSEN- 
TIAL REQUISITES  :  Covering  definition, 
form,  and  essentials,  the  order,  the  promise, 
specification  of  parties,  capacity  of  parties, 
delivery,  date,  value  received,  and  days  of 
srace. 

Chapter   III. 

ACCEPTANCE  OF  BILLS  OF  EXCHANGE  : 

Covering  the   various   kinds   of  acceptance, 
and  the  rules  relating  thereto. 

Chapter    IV. 

INDORSEMENT  :  Defining  and  explaining  the 
various  kinds  of  indorsements,  and  showing 
their  requisites  and  effect. 

Chapter  V. 

OP  THE  NATURE  OF  THE  LIABILITIES 
OF  THE  PARTIES  :  Covering  liability  of 
maker,  acceptor,  drawer,  iudorser.  rights  and 
liabilities  of  accommodation  and  accommo- 
dated parties,  estoppel  and  warranties,  and 
damages  for  breach. 


Chapter  VI. 

TRANSFER  :  Covering  definition,  validity,  and 
various  methods  of  transfer,  and  status  of 
overdue  pai)er. 


Chapter  VII. 

DEFENSES  AS  AGAINST  PURCHASER 
FOR  VALUE  WITHOUT  NOTICE  :  Cov- 
ering the  subject  generally  and  fully. 


Chapter   VIII. 

THE  PURCHASER  FOR  VALUE  WITH- 
OUT NOTICE:  Explaining  who  is,  and 
discussing  consideration,  ^ood  faith,  notice, 
overdue  paper,  presumption,  and  burden  of 
proof,  etc. 

Chapter  IX. 

OF  PRESENTMENT  AND  NOTICE  OP  DIS- 
HONOR :  Covering  presentment  for  accept- 
ance and  for  payment,  dishonor,  protest,  no- 
tice of  dishonor,  waiver,  etc. 


Chapter  X. 

CHECKS  :    Covering  generally  the  law  relating 
to  checks. 


APPENDIX:     The     Negotiable     Instruments 
Law. 


1  VOL.     553  PAGES     $3.75,  DELIVERED. 


WEST  PUBLISHING  CO., St.  Paul,  Minn. 


C'MV'-  1 


iZ^  ^omBooS  BttkB.) 


5anb6ooft  of  Crimtnaf  &(xw, 

qSs  Tr>tn.  a.  Cforft,  3r., 

Author  of  a  "Handbook  of  the  Law  of  Contracts. *• 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

DEFINITION  OF  CRIME :  The  nature  of  crime 
and  ground  of  punishment. 

CHAPTER  II. 

CRIMINAL  LAW :  How  the  criminal  law  is  pre- 
scribed; the  common  law:  statutes,  and  the 
powers  of  state  and  federal  legislatures. 

CHAPTER  III. 

CLASSIFICATION  OF  CRIME  S :  As  treason,  fel- 
onies, misdemeanors,  etc. ;  merger  of  offenses. 

CHAPTER  IV. 

THE  MENTAL  ELEMENT  IN  CRIME:  Con- 
sidering the  will,  intention,  motive,  and  crim- 
inal intention  or  malice. 

CHAPTER  V. 

PERSONS  CAPABLE  OF  COMMITTING  CRIME: 
Covering  also  exemption  from  responsibility, 
and  discussing  infancy,  insanity,  drunkenness, 
ignorance  or  mistake  of  law  or  of  fact,  provo- 
cation, necessity  and  compulsion,  married  wo- 
men and  corporations. 

CHAPTER  VI. 

PARTIES  CONCERNED:  Covering  effect  of 
joining  in  criminal  purpose,  principles  in  first 
and  second  degrees,  accessories  before  and 
after  the  fact,  terms  "aider  and  abettor  "and 
"accomplice. " 

CHAPTER  VII, 


THE  OVERT  ACT:     Covering 
licitation  and  conspiracy. 


also  attempts,  so- 


CHAPTER  VIII. 

OFFENSES  AGALXST  THE  PERSON:  Cover- 
ing homicide,  murder,  and  manslaughter,  with 
consideration  of  tbe  different  degrees,  acci- 
dent, self-defense,  etc. 

CHAPTER  IX. 

OFFENSES  AGAJNST  THE  PERSON  (Contin- 
ued) :  Covering  abortion,  mayhem,  rape,  sod- 
omy, seduction,  assaults,  false  imprisonment, 
kidnapping,  abduction. 


CHAPTER  X. 

OFFENSES  AGAINST  THE  HABITATION: 
Covering  arson  and  burglary. 

CHAPTER  XI. 

OFFENSES  AGAINST  PROPERTY:  Covering 
larceny,  embezzlement,  cheating  at  common 
law  and  by  false  pretenses,  robbery,  receiving 
stolen  goods,  malicious  mischief,  forgery,  etc. 

CHAPTER  XII. 

OFFENSES  AGAINST  THE  PUBLIC  HEALTH, 
MORALS,  ETC. :  Covering  nuisances  in  gen 
eral,  bigamy,  polygamy,  adultery,  fornication, 
lewdness,  etc. 

CHAPTER  XIII. 

OFFENSES  AGAINST  PUBLIC  JUSTICE  AND 
AUTHORITY:  Covering  barretry,  obstruct- 
ing justice,  embracery,  prison  breach,  mispri- 
sion of  felony,  compounding  crime,  perjury, 
bribery,  misconduct  in  office,  etc. 

CHAPTER  XIV. 

OFFENSES  AGAINST  THE  PUBLIC  PEACE: 
Covering  dueling,  unlawful  assembly,  riot, 
affray,  forcible  entry  and  detainer,  libels  on 
private  persons,  etc. 

CHAPTER  XV. 

OFFENSES  AGAINST  THE  GOVERNMENT: 
Covering  treason  and  misprision  of  treason. 

CHAPTER  XVI. 

OFFENSES  AGAINST  THE  LAW  OF  NA 
TIONS:     As  piracy. 

CHAPTER  XVII. 

JURISDICTION:  Covering  territorial  limits  of 
states  and  United  States,  jurisdiction  as  deter- 
mined by  locality,  federal  courts  and  the  com- 
mon law,  jurisdiction  conferred  by  congress, 
persons  subject  to  our  laws,  eta 

CHAPTER  XVIII. 

FORMER  JEOPARDY:    In  genoraL 


1    VOL.      450   PAGES.      S3. 75    DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


('■'-) 


(t^  gomBocft  ^crtee.) 


^Pe  San)  of  €on(racf0> 

QBj  TTm.  £.  eferft,  3r., 

Author  of  a  "  Handbook  of  Criminal  Law." 


CHAPTER  I. 

CONTRACT  IN  GENERAL:  Covering  its  defi- 
nition, nature,  and  requisites,  and  discussing 
agreement,  obligation,  promise,  void,  voidable, 
and  unenforceable  agreements,  and  the  essen- 
tials of  contract,  etc. 

CHAPTER  II. 

OFFER  AND  ACCEPTANCE:  Covering  im- 
plied contracts,  necessity  for  communication 
and  acceptance,  character,  mode,  place,  time, 
and  effect  of  acceptance,  revocation,  and  lapse 
of  offer,  etc. 

CHAPTER  III. 

CLASSIFICATION  OF  CONTRACTS:  Cover- 
ing contracts  of  record  and  contracts  under 
seal,  and  their  characteristics. 

CHAPTER  IV, 

REQUIREMENT  OF  WRITING:  Covering  also 
statute  of  frauds,  and  discussing  promise  by- 
executor,  promise  to  answer  for  another, 
agreements  in  consideration  of  marriage  and 
in  relation  to  land,  and  agreements  not  to  be 
performed  within  a  year,  sufficiency  of  memo- 
randum, etc. 

CHAPTER  V. 

CONSIDERATION :  Covering  the  necessity  for 
consideration,  its  adequacy,  reality,  and  legal- 
ity, failure  of  consideration,  etc. 

CHAPTER  VI. 

CAPACITY  OF  PARTIES:  Covering  political 
and  professional  status,  infants,  insane  and 
drunken  persons,  married  women,  and  corpo- 
rations. 


CHAPTER  VII. 

REALITY  OF  CONSENT:  Covering  mistake, 
misrepresentation,  fraud,  duress,  and  undue 
influence. 

CHAPTER  VIII. 

LEGALITY  OF  OBJECT:  Covering  unlawful 
agreements  in  general,  agreements  in  viola- 
tion of  positive  law  and  those  contrary  to  pub- 
lic policy,  effect  of  illegality,  conflict  of  laws, 
etc. 

CHAPTER  IX. 

OPERATION  OF  CONTRACT:  Covering  the 
limits  of  the  contractual  relation,  assignment 
of  contracts,  whether  by  act  of  parties  or  by 
operation  of  law,  joint  and  several  contracts, 
etc. 

CHAPTER  X. 

INTERPRETATION  OF  CONTRACT:  Cover- 
ing the  rules  relating  to  evidence,  proof  of 
document,  rules  of  construction,  penalties  and 
liquidated  damages,  etc. 

CHAPTER  XI. 

DISCHARGE  OF  CONTRACT:  Covering  dis- 
charge by  agreement,  by  performance,  by 
breach,  by  impossibility  of  performance,  by 
operation  of  law,  etc.,  and  remedies  on  breach 
of  contract. 

CHAPTER  XII. 

AGENCY :  Covering  the  creation  of  the  relation, 
its  effect  and  determination,  the  capacity, 
rights,  and  liabilities  of  the  parties,  etc. 

CHAPTER  XIII. 

QUASI  CONTRACT:  Covering  obligations  cre- 
ated by  law  upon  which  an  action  ex  contractu 
will  lie  without  proof  of  contract  in  fact,  in- 
cluding judgments,  obligations  imposed  by 
statute,  acts  of  parties,  etc 


1   VOL..   932   PAGES.   $3.75    DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


C4) 


it^  ^om6ooft  ^eries.) 


(^  ^atib^oo^  of 

Common^ San)  (pkaUn^. 


(§2  (S^njamin  3.  ^^t^Mnan. 


SECOND  EDITION. 


TABLE   OF   CONTENTS. 


Chapter   I. 

FORMS  OP  ACTION:  Covering  the  nature  and 
classification  of  actions,  real,  personal,  and 
mixed  actions,  assumpsit,  special  and  general, 
debt,  covenant,  account  or  account  rendered. 

Chapter   II. 

FORMS  OF  ACTION  (Continued):  Covering 
trespass, -trover,  case,  detinue,  replevin,  eject- 
ment, virrit  of  entry,  forcible  entry  and  detain- 
er, etc 

Chapter  III. 

THE  PARTIES  TO  ACTIONS :  Covering  actions 
in  form  ex  contractu  and  ex  delicto,  and  the 
consequences  of  misjoinder  or  nonjoinder  of 
parties  plaintiff  or  defendant. 

Chapter  IV. 

THE  PROCEEDINGS  IN  AN  ACTION:  Cover- 
ing process,  the  summons,  writ  of  attachment, 
appearance,  the  declaration,  demurrer,  and  va- 
rious pleas,  amendments,  etc.,  the  verdict,  and 
proceedings  after  the  verdict,  the  judgment, 
and  proceedings  thereafter  to  the  writ  of  exe- 
cution. 

Chapter  V. 

THE  DECLARATION:  Statement  of  cause  of 
action  In  general ;  form  of  declaration ;  es- 
sential averments  of  declaration  in  special  as- 
sumpsit or  on  common  counts,  in  debt,  cove- 
nant, account,  case,  detinue,  trover,  trespass, 
replevin,  ejectment,  and  trespass  for  mesne 
profits  after  ejectment. 

Chapter  VI. 

THE  PRODUCTION  OF  THE  ISSUE:  Discuss- 
ing the  rules,  and  covering  the  demurrer,  the 
pleadings,  the  traverse,  forms  of  the  general 
issue  and  of  the  special  traverse,  protesta- 
tions, exceptions,  issues  in  fact  and  law,  etc. 


Chapter  VII. 

MATERIALITY  IN  PLEADING:    Covering  the 
general  rule,  variance,  limitation  of  traverse, 


etc. 


Chapter  VIII. 


SINGLENESS  OR  UNITY  IN  PLEADING :  Coy- 
ering  the  rules  in  general,  duplicity,  immato- 
rial  matter,  inducement,  protestation,  conse- 
quences of  duplicity  and  of  misjoinder,  plea 
and  demurrer,  etc 

Chapter   IX. 

CERTAINTY  IN  PLEADING:  Covering  the 
venue,  time,  quantity,  quality,  and  value, 
names  of  persons,  showing  title  and  author- 
ity, with  subordinate  rules,  and  special  re- 
quirements in  different  stages. 

Chapter  X. 

CONSISTENCY  AND  SIMPLICITY  IN  PLEAD- 
ING :  Covering  insensibility,  repugnancy,  am- 
biguity, argumentative  pleadings,  pleadings 
In  alternative,  positive  statements,  legal  effect, 
conformance  to  precedent,  commencement  and 
conclusion. 

Chapter   XI. 

DIRECTNESS  AND  BREVITY  IN  PLEADING: 
Covering  the  rules  generally,  departure,  pleas 
amounting  to  general  issue,  surplusage,  eta 

Chapter  XII. 

MISCELLANEOUS  RULES:  Covering  con- 
formance to  process,  alleging  damages  and 
production  of  suit,  order  of  pleading,  defense, 
plea  in  abatomeut,  dilaloi'y  pleas,  eto. 

APPENDIX:    Forma. 


This  book  embodies  such  of  the  rules  and  principles  of  Common-Law  Pleading  as  are  still 
recognized  and  applied  in  this  country.  A  knowledge  of  the  common-law  system  is  of  advantage,  ii 
indeed,  it  is  not  essential,  to  a  thorough  understanding  of  both  code  and  equity  pleading. 

ONE  VOLUME,  615  PAGES,  $3.75,  DELIVERED. 


WEST  PUBLISHINO  CO.,  St.  Paul,  Minn. 


(5) 


(g  ^anbBoog  of  ComtitUtiOMf  fiCHI? 


Q0g  Jq.  CiXm^M  (Sf(icft, 

TABLE     OF     CONTENTS. 


Author  of  Black's  Law  Dictionary,  Treatises 
on  Judgments,  Tax  Titles,  etc. 


Chapter  I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Considering  the  meiining  of  "Constitutional" 
and  "Unconstitutional;  "  written  and  unwrit- 
ten constitutions,  bills  of  rights,  right  of  revo- 
lution, political  and  personal  responsibilities, 
etc. 

Chapter  II. 

THE  UNITED  STATES  AND  THE  STATES: 
Considering  the  nature  of  the  American 
Union,  sovereignty  and  rights  of  the  states 
and  of  the  people,  form  of  government,  the 
Federal  Constitution,  etc. 

Chapter   III. 

ESTABLISHMENT  AND  AMENDMENT  OP 
CONSTITUTIONS:  Containing  an  historical 
introduction,  and  considering  the  establish- 
ment and  amendment  of  the  Federal  Constitu- 
tion and  of  State  Constitutions. 

Chapter  IV. 

CONSTRUCTION  AND  INTERPRETATION  OF 
CONSTITUTIONS:  Considering  the  office 
and  duty  of  the  judiciary  in  this  direction. 

Chapter   V. 

THE  THREE  DEPARTJIENTS  OF  GOVERN- 
MENT: Considering  the  division,  limitations 
on  the  departments,  political  and  judicial 
questions,  etc. 

Chapter   VI. 

THE  FEDERAL  EXECUTIVE:  Considering 
the  election,  qualifications,  impeachment, 
compensation  and  independence  of  the  Presi- 
dent, his  oath  of  office,  veto  power,  pardoning 
and  military  power,  and  treaty-making  power; 
vacancy  in  office,  the  cabinet,  appointments 
to  office,  presidential  messages,  diplomatic  re- 
lations, authority  to  convene  and  adjourn  con- 
gress, execute  the  laws,  etc. 

Chapter  VII. 

FEDERAL  JURISDICTION:  Considering  the 
jurisdiction,  powers  and  procedure  of  Federal 
courts,  removal  of  causes,  the  United  States 
and  the  states  as  parties,  etc. 

Chapter   VIII. 

TDE  POWERS  OF  CONGRESS:  Considering 
the  constitution,  organization  and  government 
of  congress,  its  powers,  and  the  limitations 
thereon. 

Chapter  IX. 

INTERSTATE  LAW,  as  determined  by  the  Con- 
stitution :  Considering  its  general  principles, 
the  privileges  of  citizens,  interstate  extradi- 
tion, public  acts  and  judicial  proceedings,  etc. 

Chapter   X. 

REPUBLICAN  GOVERNMENT  GUARANTIED. 


Chapter   XI. 

EXECUTIVE  POWER   IN  THE  STATES. 
Chapter   XII. 

JUDICIAL  POWERS  IN  THE  STATES:  Con- 
sidering the  system  of  courts,  judges,  juris- 
diction, process  and  procedure. 

Chapter    XIII. 

LEGISLATIVE  POWER  IN  THE  STATES :  Con- 
sidering the  organization  and  government  of 
legislature,  limitation  and  delegation  of  legis- 
lative powers,  enactment  of  laws,  etc 

Chapter   XIV. 

THE  POLICE  POWER:  Considering  the  police 
power  as  vested  in  congress  and  in  the  states, 
and  its  scope  and  limitations. 

Chapter  XV. 

THE  POWER  OF  TAXATION:  Considering 
the  purposes  of  taxation,  ind'ependence  of 
Federal  and  State  governmeuts,  limitations  on 
power,  taxation  and  representation,  etc 

Chapter  XVI. 

THE  RIGHT  OF  EMINENT  DOMAIN:  Defini- 
tion and  nature  of  the  power,  constitutional 
provisions,  authority  to  exercise,  public  pur- 
pcs3,  appropriation  to  new  uses,  etc. 

Chapter   XVII. 

MUNICIPAL  CORPORATIONS:  The  nature, 
control,  powers,  officers  and  by-laws  of  mu- 
nicipal corporations,  etc. 

Chapter   XVIII. 

CIVIL  RIGHTS,  AND  THEIR  PROTECTION 
BY  THE  CONSTITUTION:  Considering 
rights  in  general,  liberty,  due  process  of  law, 
vested  rights,  trial  by  jury,  etc. 

Chapter  XIX. 

POLITIC A.L  AND  PUBLIC  RIGHTS:  Consider- 
ing citizenship,  right  of  suffrage,  freedom  of 
speech,  right  of  assembly  and  petition,  etc. 

Chapter  XX. 

CONSTITUTIONAL    GUARANTIES    IN    CRIM 
INAL    CASES:      Considering  trial   by  jury, 
rights  of  accused,  jeopardy,  bail,  ex  post  facta 
laws,  liabeas  corpus,  etc. 

Chapter  XXI. 

LAWS  IMPAIRING  THE  OBLIGATION  OF 
CONTRACTS:  Considering  the  obligation 
and  the  impairment  of  the  contract,  power  of 
legislature  to  contract,  remedies  on  contracts^ 
etc. 

Chapter   XXII. 

RETROACTIVE  LAWS:  Considering  the  validity 
of  retroactive  statutes,  curative  statutes,  et<x. 


1    VOL.,  740    PAGES,  $3.75.  DELIVERED. 

WEST  PUBLISHING  COMPANY,  St. 

C1596  (6) 


Paul,  Minn. 


(^^  j^omBooft  ^eriee.) 


(^  ^m'i>^O0^  of 

Q0g  (JXorman  Softer. 


TABLE    OF    CONTENTS. 


Chapter   I. 

NATURE  AND  DEFINITION  OP  EQUITY. 

Chapter  II. 

PRIiSrCIPLES  DEFINING  AND  LIMITING  JU- 
RISDICTION :  Considering  jurisdiction  over 
crimes,  adequate  legal  remedy,  complete  re- 
lief, and  multiplicity  of  suits. 

Chapter  III. 

THE  MAXIMS  OF  EQUITY:  Definition  and 
classification  of  maxims;  the  enabling  and  re- 
strictive maxims. 

Chapter   IV. 

THE  DOCTRINES  OF  EQUITY;  Considering 
estoppel,  election,  satisfaction,  performance, 
and  conversion. 

Chapter   V. 

THE  DOCTRINES  OF  EQUITY  (Coxtixied)  : 
Considering  conflicting  rights  of  purchasers, 
assignees,  notice,  bona  fide  purchasers,  priori- 
ties, etc. 

Chapter   VI. 

THE  DOCTRINES  OF  EQUITY  fCoxTiNUKD) : 
Considering  penalties  and  forfeitures,  liqui- 
dated damages. 


Chapter   VII. 

GROUNDS  FOR  EQUITAHLE   RETJKF: 
Bidering  accident,  mi'^lako,  fraud,  etc. 


Con- 


Chapter   VIII. 

PROPERTY  IN  EQUITY— TRUSTS:  Covering 
definition,  history,  and  classification  of  trusts, 
charitable  trusts,  duties  and  liabilities  of  trulE^ 
tees,  remedies  of  cestui  que  trust,  etc. 

Chapter   IX. 

PROPERTY  IN  EQUITY  —  MORTGAGESv 
LIENS,  AND  ASSIGNMENTS. 

Chapter   X. 

EQUITABLE  REMEDIES :  Covering  accounting, 
contribution,  exoneration,  subrogation,  and 
marshaling. 

Chapter   XI. 

EQUITABLE  REMEDIES  (Coxtixuep)  :  Cov- 
ering partition  and  settlement  of  boundaries. 

Chapter   XII. 

EQUITABLE  REMEDIES  (Continued):  Cov- 
ering specific  performance,  and  considering 
enforceable  contracts,  grounds  for  refusing  re- 
lief, etc. 

Chapter   XIII. 

EQUITABLE  REMEDIES  (CoxTixcEn^ :  Cov- 
ering injunctions,  and  considering  their  juris- 
dictional principles,  classes  of  cases,  where 
remedj'  may  be  used,  etc. 

Chapter   XIV. 

REFORMATION,  CANCELL.^TION  AND 
QUIETING  TITLE. 

Chapter    XV. 

ANCILLARY  RIOMKDIES:  (^ovorin?  discovery, 
bills  to  perpetuate  testimony,  interpleader, 
receivers,  etc. 


1  VOL.,   474   \'A(UiS,   $375.   DHLIVIIRni). 


WEST  PUBLISHFNO  CO.,  St.  Paul,  Minn. 


(7) 


(^f^  J5om6ooft  ^crtee.) 


(§  '^ciMoo^  of 

Cviminai  (pvou^nv<t. 

@ufpor  of  a  "l^anbfiooft  of  Criminaf  feat»,"  Mxi)  a 
"fan^6oofl  of  Ccnfracte." 


TABLE  OF  CONTENTS. 


Chapter    I. 

JURISDICTION :  Covering  c  ourts  of  criminal  ju- 
risdiction and  venue. 

Chapter   II. 

APPREHENSION  OF  PERSONS  AND  PROP- 
ERTY: Covering  arrest  in  general,  warrants, 
extradition,  searches  and  seizures  of  property, 
and  taking  property  from  prisoner. 

Chapter  HI. 

PRELIMINARY  EXAMINATION,  BAH^.  AND 
COiiiMlT-MENT:  Covering  right  to  release  on 
bail,  habeas  corpus,  the  recognizance,  rekase 
of  sureties,  etc. 

Chapter   IV. 

M(»DE  OP  ACCUSATION:  Covering  the  indict- 
ment and  presentment,  information,  coroner's 
inquisition,  time  of  prosecution,  and  nolle 
prosequi,  etc. 

Chapter   V. 

PLEADING— THE  ACCUSATION:  Covering 
form  of  indictment  in  general,  the  commence- 
ment, and  the  statement  of  offense  and  descrip- 
tion of  defendant. 

Chapter   VI. 

PLEADING  — THE  ACCUSATION  (Continued): 
Covering allecation  of  intent,  knowledge,  etc. ; 
technical  terms;  second  or  third  offense;  set- 
ting forth  writings;  description  of  property 
and  persons;  ownership. 

Chapter   VTI. 

PLEADING— THE  ACCUSATION  CCotitinued) : 
Covering  statement  of  time  and  place. 


Chapter    VIII. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  indictments  on  statutes. 

Chapter   IX. 

PLEADING— THE  ACCUSATION  (Continued): 
Covering  duplicity,  joinder  of  counts  and  par- 
ties, election,  conclusion  of  indictment,  amend- 
ment, aider  by  verdict,  etc. 

Chapter   X. 

PLEADING  AND  PROOF:  Covering  variance 
and  conviction  of  minor  and  higher  offense. 

Chapter   XI. 

MOTION  TO  QUASH;  Covering  also  arraign- 
ment, demurrer,  and  pleas  of  defendant. 

Chapter   XII. 

TRIAL  AND  VERDICT:  Coveringtime  and  place 
of  trial,  custody  and  presence  of  defendant, 
bill  of  particulars,  the  counsel,  judge  and  jury, 
arguments  and  instructions,  etc. 

Chapter   XIII. 

PROCEEDINGS  AFTER  VERDICT:  Covering 
motion  in  arrest  of  judgment,  sentence,  new 
trial,  writ  of  error,  etc. 

Chapter   XIV. 

EVIDENCE:  Covering  facts  in  issue,  motive, 
res  gestae,  other  crimes,  declarations,  confes- 
sions, character,  burden  of  proof,  witnesses, 
etc. 

Chapter   JiCV. 

HABEAS  CORPUS. 


I  VOL.     658  PACES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  CO., St.  Paul,  Minn. 


(8) 


4$e  J^otn^ooi  ^txicB. 


♦  ♦  ♦  oCV  ♦  ♦  ♦ 

^an^Booft  of  i^e  San)  of  ^afee 


QBj  brands  (g.  tiffanj^,  (^.  Q5.,  £&.  (g.  (Jgart^drb). 


Author  of   "Tiffany  on  Death  by  Wrongful  Act" 


TABLE  OF  CONTENTS. 


Cliapter   I. 

FORMATION  OF  THE  CONTRACT:  Covering 
the  capacity  of  parties,  who  may  sell,  the  thing 
sold,  mutual  assent,  form,  and  price. 

Chapter   II. 

FORMATION  OF  THE  CONTRACT  (Continued)  : 
Covering  the  statute  of  frauds. 

Chapter   III. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY:  Covering  sales  of  specific 
chattels, — unconditional  sales,  conditional  sales, 
sale  on  trial  or  approval,  and  sale  or  return. 

Chapter   IV. 

EFFECT  OF  THE  CONTRACT  IN  PASSING 
THE  PROPERTY  (Continued) :  Covering  sales 
of  chattels  not  specific,  appropriation  of  property 
to  the  contract,  reservation  of  right  of  dispoaai, 
etc. 

Chapter   V. 

MISTAKE,  FAILURE  OF  CONSIDERATION, 
AND  FRAUD :  Showing  the  effect  of  mistake, 
failure  of  consideration,  and  fraud  generally, 
frauds  on  creditors,  the  delivery  necessary  as 
against  creditors  and  purchasers,  etc. 


Chapter   VI. 

ILLEGALITY:  Covering  sales  prohibited  by  the 
common  law,  by  public  policy,  and  by  statute; 
the  effect  of  illegality,  and  the  conflict  of  laws. 


Chapter   VII. 

CONDITIONS  AND  WARRANTIES:  Covering 
conditions  and  war  ranties  generally. 

Chapter   VIII. 

PERFORMANCE:  Covering  fully  delivery,  the 
buyer's  right  of  examination,  acceptance,  and 
payment. 

Chapter   IX. 

RIGHTS  OF  UNPAID  SELLER  AGAINST  THE 
GOODS:  Covering  the  seller's  lion,  stoppage 
in  transitu,  and  the  right  of  resale^ 

Chapter   X. 

ACTION  FOR  BREACH  OF  THE   CONTRACTT: 

Covering  the  various  remedies  of  the  seller  and 
of  the  buyer. 


I  Volume.     356  Pages.     $3.75,  Delivered. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


(9) 


I 


(^om6xfi  ^erice.) 


^  f  anbBoog  of  ^nkvmtioncii  Saw^ 


(§^  Capt  (gbwtn  J".  (KPmnj 


Acting  Judge  Advocate, 
United  States  Army. 


TABLE  OF   CONTENTS. 


INTRODUCTION. 

Covering  the  detinitioo,  sonrce,  and  nature  of  In- 
ternational Law. 

Cliapter   I. 

PERSONS  IN  INTERNATIONAL  LAW:  Cov- 
ering states,  their  loss  of  identity,  various  unions 
of  states,  de  facto  states,  belligerency  and  recog- 
nition thereof,  and  equality  of  states. 

Chapter   II. 

THE  COMMENCEMENT  OF  STATES— FUNDA- 
MENTAL RIGHTS  AND  DUTIES:  Covering 
the  commencement  and  recognition  of  new 
states,  effect  of  change  of  sovereignty,  the  fun- 
damental rights  and  duties  of  states,  etc 

Chapter   III. 

TERRITORIAL  PROPERTY  OF  A  STATE: 
Covering  modes  of  acquiring  property,  boun- 
daries, territorial  waters,  etc. 

Chapter   IV. 

TERRITORIAL  JURISDICTION:  Covering  ex- 
territoriality, sovereigns  and  diplomatic  agents 
and  their  immunities,  vessels,  right  of  asylum, 
alienage,  responsibility  for  mob  violence,  extra- 
dition, jurisdiction  beyond  state  limits,  etc. 

Chapter   V. 

JURISDICTION  ON  THE  HIGH  SEAS  AND 
UNOCCUPIED  PLACES:  Covering  nature  of 
jurisdiction,  jurisdiction  over  merchant  ships, 
piracy,  privateers,  letters  of  marque,  slave 
trade,  etc. 

Chapter   VI. 

THE  AGENTS  OF  A  STATE  IN  INTERNA- 
TIONAL RELATIONS:  Covering  public  diplo- 
matic agents  and  consuls,  and  matters  relating 
to  them. 

Chapter   VH. 

INTERVENTION:  Covering  the  subject  gener- 
ally. 

Chapter   VIII. 

NATIONALITY:  Covering  citizenship,  allegi- 
ance, expatriation,  naturalization,  etc. 


TREATIES: 


Chapter   IX. 

Covering  the  subject  generally. 


Chapter   X. 

AMICABLE  SETTLEMENT  OF  DISPUTES: 
Covering  mediation,  arbitration,  retorsion,  re- 
prisals, embargo,  racific  blockade,  etc. 

Chapter   XI. 

INTERNATIONAL  RELATIONS  IN  WAR: 
Covering  the  subject  of  war  generally,  includ- 
ing the  kinds,  causes,  and  objects  of  war. 

Chapter   XII. 

EFFECTS  OP  WAR— AS  TO  PERSONS:  Cov- 
ering the  relations  of  enemies,  noncombatants, 
privateers,  prisoners  of  war,  and  the  subjects  of 
ransom,  parole,  etc. 


Chapter   XIII. 

EFFECTS  OF  WAR  — AS  TO  PROPERTY: 
Covering  contributions,  requisitions,  foraging, 
booty,  ransom,  and  other  questions  in  regard 
to  property. 

Chapter   XIV. 

POSTLIMINIUM:  The  right  and  Its  limitations 
defined  and  explained. 

Chapter   XV. 

MILITARY  OCCUPATION:  Covering  the  defi- 
nition, extent,  and  effect  of  occupation,  and  the 
duties  of  an  occupant. 

Chapter   XVI. 

MEANS  OF  CARRYING  ON  HOSTILITIES: 
Covering  the  instruments  and  means  of  war, 
spies,  etc. 

Chapter   XVII. 

ENEMY  CHARACTER:  Covering  enemies  gen- 
erally, domicile,  houses  of  trade,  property  and 
transfer  thereof,  etc. 

Chapter   XVIII. 

NON-HOSTILE  RELATIONS:  Covering  com- 
mercia  belli,  flags  of  truce,  passports,  safe-con- 
ducts, truces  or  armistices,  cartels,  etc 

Chapter   XIX. 

TERMINATION  OF  WAR:  Covering  the  meth- 
ods of  termination,  uti  possidetis,  treaties  of 
peace,  conquest,  etc. 

Chapter   XX. 

OF  NEUTRALITY  IN  GENERAL:  Neutrality 
defined  and  explained. 

Chapter   XXI. 

THE  LAW  OF  NEUTRALITY  BETWEEN  BEL- 
LIGERENT AND  NEUTRAL  STATES:  Cov- 
ering the  rights,  duties,  and  liabilities  of  neutral 
states. 

Chapter   XXII. 

CONTRABAND :    Covering  the  subject  generally. 

Chapter  XXIII. 
BLOCKADE :     Covering  the  subject  generally. 

Chapter  XXIV. 

VISIT  AND  SEARCH,  AND  RIGHT  OF  AN- 
GARY:   Covering  those  subjects  generally. 

APPENDIX. 

Giving  in  full,  as  in  no  other  single  work,  the  In- 
structions for  the  Government  of  Armies  of  the 
United  States  in  the  Field  (Lieber) ;  Papers  Car- 
ried, or  that  Ought  to  be  Carried,  by  Vessels  in 
Evidence  of  their  Nationality;  The  Declaration 
of  Paris;  The  Declaration  of  Bt.  Petersburg; 
The  Geneva  Convention  for  the  Amelioration  of 
the  Condition  of  the  Sick  and  Wounded  of  Ar- 
mies in  the  Field;  The  Laws  of  War  on  Land, 
(Recommended  for  Adoption  by  the  Institute  of 
International  Law  at  Oxford,  Sept.  8, 1880) ;  and 
The  Brussels  Conference. 


1   VOLUME.     500   PAGES.      S3. 75,   DELIVERED. 

WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

(10; 


(€?e  l^tnioo^  ^eriee.) 


^pe  ^att)  of  Cor(0. 

(Ebwin  @,.  gaggrtrt,  @„  (Jit.,  ££.  QB., 

Professor  of  the  Law  of  Torts  in  the  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 


PART  I.— IN   GENERAL. 
Chapter   I. 

GENERAL  NATURE  OP  TORTS:  Covering  the 
law  adjective  and  law  substantive,  distinctions 
between  torts  and  crimes,  common-law  obliga- 
tions and  remedies,  how  and  why  liability  at> 
taches  for  torts,  the  mental  element,  connec- 
tion as  cause,  damnum  and  injuria,  common- 
law,  contract  and  statutory  duties,  etc. 

Chapter   II. 

VARIATIONS  IN  THE  NORMAL  RIGHT  TO 
TO  SUE:  Covering  exemptions  based  on 
privilege  of  actor,  as  public  acts  of  states,  of 
judicial  and  executive  officers,  etc.,  and  private 
acts  authorized  by  statute  or  common  law, 
variations  based  on  status  or  conduct  of  plain- 
tiff, etc. 

Chapter  III. 

LIABILITY  FOR  TORTS  COMMITTED  BY  OR 
WITH  OTHERS:  Covering  liability  by  con- 
cert in  action  or  joint  torts,  and  liability  by 
relationship,  as  husband  and  wife,  landlord 
and  tenant,  master  and  servant,  partners,  etc. 

Chapter  IV. 

DISCHARGE  AND  LIMITATION  OF  LIABILI- 
ITY  FOR  TORTS:  Covering  discharge  or 
limitation  by  voluntary  act  of  party  and  by 
operation  of  law. 

Chapter  V. 

REMEDIES:  Covering  statutory  and  common- 
law  remedies,  judicial  and  extrajudicial  reme- 
dies, damages,  etc. 

PART  II.— SPECIFIC  WRONGS. 
Chapter  VI. 

WRONGS  AFFECT1N(;  SAFETY  AND  FREE- 
DOM OF  PERSONS;  Covering  false  impris- 
onment, assault  and  battery,  and  the  defenses, 
as  justification  and  mitigation. 


Chapter  VII. 

INJURIES  IN  FAMILY  RELATIONS:  Cover- 
ing the  iamily  at  common  law,  master  and 
servant,  parent  and  child,  husband  and  wife. 

Chapter  VIII. 

WRONGS  AFFECTING  REPUTATION:  Cover- 
ing libel,  slander,  and  slander  of  title,  together 
with  the  defenses. 

Chapter   IX. 

MALICIOUS  WRONGS:  Covering  deceit,  mali- 
cious prosecution,  abuse  of  process,  interfer- 
ence with  contract,  conspiracy,  etc. 

Chapter  X. 

WRONGS  TO  POSSESSION  AND  PROPERTY: 

Covering  the  nature  of  possession  and  its  ob- 
jects, trespass,  waste,  conversion,  etc. 

Chapter    XI. 

NUISANCE:  Covei'ing  kinds  of  nuisance,  as  pub- 
lic, private,  and  mixed,  continuing  and  legal- 
ized, parties  to  proceedings  against,  remedies, 
etc. 

Chapter  XII. 

NEGLIGENCE:  Covering  the  duty  to  exercise 
care,  what  is  commensurate  care,  common-law, 
contract  and  statutory  duties,  damages,  con- 
tributor.y  negligence,  etc. 

Chapter   XIII. 

MASTER  AND  SERVANT:  Covering  master's 
liability  to  servant  for  negligence,  master's 
duty  to  servant,  assumiJtion  of  risk  by  serv- 
ant, various  kinds  of  risks,  fellow  servants, 
vice  principals,  etc. 

Chapter    XIV. 

COMMON'  CARRIERS:  Covering  the  subject 
generally. 


2  VOLS.     1.328   PAGES.     $7.50.    DELIVERED, 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


uu 


t^c   j^ornfiooft   ^erteg. 


(^  35an&6ooR  of  . 


•       •       • 


4pe  ConsttucHon  anb 
3n^erj?re^a^ion  of  Sai»0t 

QwUi      O'Aiv/iDcatriii      DiAr^u-    author  of  black-s  law  dictionary,  and  trea- 
C3Y    n.    ^Mivif  dc:l.i_l.    Di-A^^r\t  tises  on  constitutional  law.  judgments.  ETa 


4* 


TABLE   OF   CONTENTS. 


Chapter  I. 

NATURE  AND  OFFICE  OF  INTERPRE- 
TATION: Covering  definition  of  terms,  ob- 
ject of  interpretation,  rules  of  construction, 
and  office  of  judiciary. 

Chapter  II. 

CONSTRUOriON  OF  CONSTITUTIONS: 
Covering  method  and  rules  of  construction, 
construction  as  a  whole,  common  law  and  pre- 
vious legislation,  retrospective  operation,  man- 
datory and  directory  provisions,  preamble  and 
titles,  extraneous  aids,  schedule,  stare  decisis, 
etc- 

Chapter   III. 

GENERAL  PRINCIPLES  OF  STATUTORY 
CONSTRUCTION:  Covering  literal  and  eq- 
uitable construction,  scope  and  purpose  of  the 
act,  casus  omissus,  implications  in  statutes, 
meaningless  statutes,  errors,  misprints,  sur- 
plusage, interpolation  of  words,   etc 

Chapter  IV. 

STATUTORY  CONSTRUCTION;  PRE- 
SUMPTIONS: Covering  presumptions  against 
exceeding  limitations  of  legislative  power,  un- 
constitutionality, injustice,  irrepealable  laws, 
implied  repeal  of  laws,  etc.,  presumptions  as 
to  public  policy,  as  to  jurisdiction  of  courts, 
etc 

Chapter   V. 

STATUTORY  CONSTRUCTION;  WORDS 
AND  PHRASP:S.  Covering  technical  and 
popular  meaning  of  words,  commercial  and 
trade,  general  and  special,  relative  and  qual- 
ifjing,  and  permissive  and  mandatory  terms; 
conjunctive  and  disjunctive  particles,  adopted 
and  re-enacted  statutes,  computation  of  time, 
etc. 

Chapter  VI. 

INTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  construction  as  a 
whole,  context,  title,  preamble,  interpretation 
clause,  etc. 

Chapter  VII. 

EXTRINSIC  AIDS  IN  STATUTORY  CON- 
STRUCTION: Covering  admissibility  of  ex- 
trinsic aids,  statutes  in  pari  materia,  con- 
temporary history,  construction  and  usage, 
journals  of  legislature,  opinions  of  legislators, 
etc. 

Chapter    VIII. 

INTERPRETATION  WITH  REFERENCE 
TO  COMMON  LAW:  Covering  statutes  af- 
firming, supplementing,  superseding  or  in 
derogation  of,  common  law. 


Chapter   IX. 

RETROSPECTIVE  INTERPRETATION: 
Covering  definition,  constitutional  considera- 
tions, vested  rights,  remedial  statutes,  and 
statutes  regulating  procedure. 

Chapter   X. 

CONSTRUCTION  OF  PROVISOS,  EXCEP- 
TIONS, AND  SAVING  CLAUSES:  Cov- 
ering the  subject  generally. 

Chapter    XI. 

STRICT  AND  LIBERAL  CONSTRUCTION: 
Covering  penal  and  remedial  statutes,  stat- 
utes against  common  right,  against  frauds, 
and  of  limitation,  legislative  grauta,  revenue 
and  tax  laws,  etc 

Chapter  XII. 

MANDATORY  ANT>  DIRECTORY  PROVI- 
SIONS: Definitions  and  rules  covering  the 
subject  generally. 

Chapter   XIII. 

AMENDATORY  AXD  AMENDED  ACTS: 
Covering  construction  of  amendments  and  of 
statute  as  amended,  identification  of  act  to  be 
amended,  amendment  by  way  of  revision,  etc 

Chapter   XIV. 

CONSTRUCTION  OF  CODES  AND  RE- 
VISED STATUTES:  Covering  construction 
as  a  whole,  reference  to  original  statutes, 
change  of  language,  previous  judicial  construc- 
tion, etc 

Chapter   XV. 

DECLARATORY  STATUTES:  Covering  defi- 
nition and  construction  in  general. 

Chapter   XVI. 

THE  RULE  OF  STARE  DECISIS  AS  AP- 
PLIED TO  STATUTORY  CONSTRUC- 
TION: Covering  the  general  principle,  re- 
versal of  construction,  federal  courts  follow- 
ing state  decisions,  construction  of  statutes  of 
other  states,  etc. 

Chapter   XVII. 

INTERPRETATION  OF  .JUDICIAL  DECI- 
SIONS AND  THE  DOCTRINE  OF  PREC- 
EDENTS: Cohering  the  nature  of  prece- 
dents; dicta;  stare  decisis;  the  force  of  prece- 
dents as  between  different  courts;  the  law  of 
the  case,  etc 


1    VOLUME. 


WEST  PUBLISHING  CO., 

C775  (12) 


509    PAGES.      $3.75,    DELIVERED. 

St.  Paul,  Minn. 


(^0e  ^om6oo6  ^criee.) 


(g  ganbBooft  of 


TABLE    OF    CONTENTS. 


Chapter  I. 

IN  GENERAL:  Corering  definition  and  gen- 
eral principles  common  to  all  bailments; 
classification    of    bailments. 

Chapter  II. 

BAILMENTS  FOR  SOLE  BENEFIT  OF 
BAILOR:  Covering  depositum  and  man- 
datum,  creation,  rights  and  liabilities  of 
parties,   termination,    etc. 

Chapter    III. 

BAILMENTS  FOR  BAILEE'S  SOLE  BEN- 
EFIT: Commodatum,  creation,  rights  and 
liabilities  of  parties,  termination,  etc. 

Chapter  IV. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
PLEDGES:  Covering  definition  of  pledge, 
creation,  title  of  pledgor,  rights  and  liabil- 
ities of  parties  before  and  after  default,  ter- 
mination, etc. 

Chapter    V. 

BAILMENTS  FOR  MUTUAL  BENEFIT- 
HIRING:  Locatio  or  hiring  defined;  estab- 
lishment of  relation;  rights  and  liabilities 
of  parties;  hiring  of  things  for  use;  hire  of 
labor  and  services;  warehousemen;  wharf- 
ingers; safe-deposit  companies;  factors,  etc.; 
termination  of  relation,  etc 


Chapter  VI. 

INNKEEPERS:  Innkeeper  defined;  who  are- 
guests;  commencement  of  relation;  duty 
to  receive  guest;  liability  for  guests'  goods; 
lien;  termination  of  relation;  liability  a» 
ordinary  bailee,  etc. 

Chapter  VII. 

CARRIERS  OF  GOODS:  Common  carriers, 
essential  characteristics;  when  liability  at- 
taches; discrimination;  compensation;  lien; 
liability  as  insurers  and  as  ordinary  bailees; 
carriers  of  live  stock;  carriers  of  baggage; 
contracts  and  notices  limiting  liability;  ter- 
mination of  liability;  connecting  carriers, 
etc.;  post-ofl5ce  department;  private  car- 
riers. 

Chapter   VIII. 

CARRIERS  OF  PASSENCxERS:  Who  are 
passengers;  when  liability  attaches;  duty 
to  accept  passengers;  furnishing  equal  ac- 
commodations: ticket  as  evidence  of  pas- 
senger's rights;  right  to  make  regulations; 
injuries  to  passengers;  contracts  limiting 
liability;  termination  of  liability;  ejection 
from  vehicle:  cnnnocting  carriers,  and  cov- 
ering the  subject  generally. 

Chapter   IX. 

ACTIONS  AGAINST  CARRIERS:  Actions 
against  carriers  of  goods  and  carriers  of 
iiiissengprs;  parties;  form  of  action;  plead- 
ing;   evidence;    damages. 


1  VOLUME.     675  PAGES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

CU95  (13) 


Z^  l^omBooS  ^eriee.) 


♦  ♦(vV»» 


Q5g  nrcifter  ©enton  ^mitg, 

Instructor  in  the  Law  Department  of  the  University  of  Michigan. 


TABLE   OF   CONTENTS. 


Part  I-ELEIVIENTARY  JURISPRUDENCE. 

CHAPTER   I. 

NATURE  OP  LAW  AND  THE  VARIOUS  SYSTEMS: 
Moral,  divine,  municipal,  international,  mari- 
time and  martial  law. 

CHAPTER    n. 

GOVERNMENT  AND  ITS  FUNCTIONS:  Covering 
sovereignty,  the  state,  the  constitution,  and  the 
forms  and  functions  of  government  generally. 

CHAPTER    III. 

GOVERNMENT  IN  THE  UNITED  STATES:  Its 
general  character,  sovereignty,  distribution  of 
powers,   citizenship,   etc. 

CHAPTER   IV. 

THE  UNWRITTEN  LAW;  The  Roman,  the  Canon 
and  the  Common  law. 

CHAPTER   V. 

EQUITY:  Nature  and  jurisdiction  of  equity;  max- 
ims. 

CHAPTER    VI. 

THE  WRITTEN  LAW:  Relation  to  unwritten  law; 
statutory  law  in  general. 

CHAPTER   VII. 

THE  AUTHORITIES  AND  THEIR  INTERPRETA- 
TION: The  rank  of  authorities,  rules  of  inter- 
pretation,  statutory  construction,   etc. 

CHAPTER    VHI. 

PERSONS  AND  PERSONAL  RIGHTS:  Legal 
rights,  wrongs  and  remedies,  rights  In  rem  and 
in  personam,  status,  personal  security,  liberty, 
property,  constitutional  guaranties,  etc. 

CHAPTER  IX. 

PROPERTY:  Covering,  ownership  and  possession; 
the  Feudal  system;  corporeal  and  Incorporeal, 
real  and  personal,  property ;    fixtures,   etc. 

CHAPTER    X. 

CLASSIFICATION  OF  THE  LAW:  SubstanUve 
and  adjective,  public  and  private  law,  etc. 

Part  II— THE  SUBSTANTIVE  LAW. 

CHAPTER    XI. 

CONSTITUTIONAL  AND  ADMINISTRATIVE  LAW: 
Written  and  unwritten  constitutions,  essentials 
and  construction  of  constitutions;  administra- 
tive law,  etc. 

CHAPTER    XII. 

CRIMINAL  LAW:  Covering  its  general  nature, 
criminal  capacity,  classification  of  crimes,  pun- 
ishment,  etc. 

CHAPTER    Xni. 

THE  LAW  OF  DOMESTIC  RELATIONS:  Cover- 
ing marriage  and  its  Incidents,  parent  and  child, 
guardian  and  ward,  master  and  servant,  etc. 


CHAPTER    XIV. 

CORPOREAL  AND  INCORPOREAL  HEREDITA- 
ME.NTS:    Covering   the   subject   generally. 

CHAPTER    XV. 

ESTATES  IN  REAL  PROPERTY:  Classification, 
estates  in  possession  and  in  expectancy;  free- 
holds and  estates  less  than  freehold;  estates  in 
severalty,  in  joint  tenancy  and  in  common;  ab- 
solute and  conditional,  legal  and  equitable  es- 
tates ;     etc. 

CHAPTER    XVI. 

TITLES  TO  REAL  PROPERTY:  Covering  title  by 
descent  and  by  purchase,  classification  and 
forms  of  deeds,   etc. 

CHAPTER    XVTI. 

PERSONAL  PROPERTY:  Real  and  personal  chat- 
tels, ownership  of  personal  property,  acquisition 
of  title,   etc. 

CHAPTER    XVIII. 

SUCCESSION  AFTER  DEATH:  TesUte  and  intes- 
tate succession,  escheat,  executors  and  adminis- 
trators,   etc. 

CHAPTER    XIX. 

CONTRACTS:  Definition,  validity  and  classification 
of  contracts,  quasi  contracts,  etc. 

CHAPTER    XX. 

SPECIAL  CONTRACTS:  Covering  contracts  of 
sale,  bailments,  negotiable  contracts,  suretyship, 
insurance,    etc. 

CHAPTER    XXI. 

AGENCY:    Covering  the  subject  generally. 

CHAPTER    XXII. 

COMMERCIAL  ASSOCIATIONS:  Covering  part- 
nerships, joint  stock  companies,  voluntary  asso- 
ciations,  corporations,    etc. 

CHAPTER    XXm. 

TORTS:  Covering  the  nature  and  elements  of  torts, 
proximate  and  remote  cause  and  specific  torts. 

Part  III— THE  ADJECTIVE  LAW. 

CHAPTER    XXIV. 

REMEDIES:  Extralegal  and  legal,  penal  and  civil, 
common  law  and  equitable,  ordinary  and  extraor- 
dinary remedies. 

CHAPTER    XXV. 

COURTS  AND  THEIR  JURISDICTION:  Covering 
the  subject  generally. 

CHAPTER    XXVI. 

PROCEDURE:  In  general;  outlines  of  common 
law,  equity,  code,  and  criminal  procedure. 

CHAPTER    XXVII. 

TRIALS:    Early  forms,  trial  procedure,  evldenca. 


1   VOL.     367   PAGES.     $3.75,  DELIVERED. 


WEST   PUBLISHING   CO.,   St.  Paul,  Minn. 

C1112  (14) 


(t^  J^otnfiooft  ^eriee.) 


(§  5anb6ooft  of 

CPe  San)  of  ©amage^; 

.    Author  of  "Bailments  and  Carriers." 


TABLE    OF    CONTENTS. 


CHAPTER   I. 

DEFINITIONS  AND  GENERAL  PRINCIPLES: 
Deflnitlon.  nature  and  theory  of  damages; 
wrong  and  damage;  analysis  of  legal  wrongs; 
classification   of   damages. 

CHAPTER   II. 

NOMINAL  DAMAGES:  Definition  and  general  na- 
ture. 

CHAPTER   III. 

COMPENSATORY  DAMAGES:  Definition;  proxi- 
mate and  remote  consequences;  direct  and  con- 
sequential losses;  avoidable  consequences;  cer- 
tainty of  damages;  profits;  entirety  of  demand; 
past  and  future  losses;  elements  of  compensa- 
Uon;  aggravation  and  mitigation  of  damages; 
reduction   of  loss;     injuries   to   limited   interests, 

CHAPTER   IV. 

BONDS,  LIQUIDATED  DAMAGES  AND  ALTERNA- 
TIVE CONTRACTS:  Covering  the  subject  gen- 
erally. 

CHAPTER   V. 

INTEREST:  Definition;  as  .a  debt  and  as  damages: 
interest  on  liquidated  and  unliquidated  de- 
mands; on  overdue  paper, — contract  and  stat- 
ute rate;    compound  interest;    etc. 

CHAPTER    VI. 

VALUE:  Definition;  how  estimated;  market  value; 
pretium  affectlonis;  value  peculiar  to  owner; 
time  and  place  of  assessment;  highest  interme- 
diate  value;     etc. 

CHAPTER    VII. 

EXEMPLARY  DAMAGES:  In  general;  when  re- 
coverable;   liability  of  principal  for  act  of  agent; 

CHAPTER    VHI. 

PLEADING  AND  PRACTICE:  Allegation  of  dam- 
age, the  ad  damnum,  form  of  statement,  prov- 
ince of  court  and  jury,  etc. 


CHAPTER  IX. 

BREACH  OP  CONTRACTS  FOR  SALE  OP  GOODS: 
Damages  in  action  by  seller  for  non-acceptance 
and  non-payment;  damages  in  action  by  buyer 
for  non-delivery,  breach  of  warranty,  and  as  for 
conversion. 

CHAPTER   X. 

DAMAGES  IN  ACTIONS  AGAINST  CARRIER: 
Carriers  of  goods, — refusal  to  transport,  non- 
delivery, injury  in  transit,  delay,  consequential 
damages;  carriers  of  passengers, — injuries  to 
passenger  exemplary  damages,  mental  suffering, 
delay,  wrongful  ejection,  etc. 

CHAPTER    XI. 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH 
COMPANIES:  Actions  by  sender  and  by  receiv- 
er; proximate  and  certain,  remote  and  specula- 
tive damages;  notice  of  purpose  and  importance 
of  message;  cipher  messages;  avoidable  conse- 
quences;   exemplary  damages;    etc. 

CHAPTER    XII. 

DAMAGES  FOR  DEATH  BY  WRONGFUL  ACT: 
Pecuniary  losses;  mental  suffering:  exemplary 
damages;  injury  to  deceased;  medical  and  fu- 
neral expenses;  meaning  of  pecuniary, — care  and 
support,  prospective  gilts  and  inheritances:  in- 
terest as  damages;  discretion  of  jury;  nominal 
damages,    etc. 

CHAPTER    XIII. 

WRONGS  AFFECTING  REAL  PROPERTY:  Dam- 
ages for  detention  of  real  property;  trespass; 
nuisance;  waste;  contract  to  sell  real  property, 
— breach  by  vendor  or  vendee;  breach  of  cove- 
nants,   etc. 

CHAPTER    XIV. 

BREACH  OF  MARRIAGE  PROMISE:  In  general, 
compensatory   damages,   exemplary  damages,  etc 


1  VOL.     476  PAGES.     S3.75,  DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 


Cllll 


(15) 


{t^  j^omfi^ft  ^erice.) 


•  (^  ^aMoo%.  of 

]  tf}C  Eati?  of  (Heaf  (properfj. 


Q?j  6arf  (p.  J^opRiuB,  ^.  (g.,  £E.  (UV 


TABLE   OF   CONTENTS. 


Chapter    I. 
WITAT   TS   r.EAL   J'lii  >ri:UTY:     Real   nnd 
pvi-soiiiil  iiruiKTty.  IJxiures.  equitable  couver- 
siou,  personal  interests  in  laud. 

Chapter   II. 

ti:m  la:  and  skisln. 

Chapter  III. 

ESTATES  AS  TO  QIANTITY— FEE  STM- 
ri.K:  Classiliiiuiiiii  of  estates,  frceholil, 
fee-simole,  creation,  right  of  userand  aliena- 
tion. 

Chapter  IV. 

ESTATES  AS  TU  UUA.NTITY  (Continued)— 
ESTATES  TAIL:  Classes,  oripin.  crea- 
tion, incidents,  duration,  tenant  in  tail  aft- 
er possibility  of  issue  extinct,  estates  tail  in 
the  United  States,  quasi  entail. 

Chapter  V. 

ESTATES  AS  TO  QUANTITY  (Continued)— 
CUNVENTIONAE  LIFE  ESTATES: 
Life  estates,  creation,  conventional  life  es- 
tates, incidents,  estates  per  autre  vie. 

Chapter  VI. 

ESTATES  AS  TO  (jrAXTI'PY  (Continued)- 
LEtLAJ^  LIKE  ESTATES:  Estate  during 
coverture,  curtesy,  dower,  homestead,  fed- 
eral homestead  act. 

Chapter  VII. 

ESTATES  AS  TO  QEANTITY  (Continued)— 
LI:SS  THAN  FHEEHOLD:  Estates  for 
years,  lettinj:  land  on  shares,  tenancies  at 
will,  tenancies  from  year  to  year,  lettinjr  of 
lodgings,  tenancies  at  sufferance,  licenses. 

Chapter    VIII. 

ESTATES  AS  TO  QIAUTY  ON  CONDI- 
TION—ON  LIMITATION:  Estates  on 
condition,  estates  on  limitation,  base  fees. 

Chapter    IX. 

ESTATES  AS  TO  oiALITY  (Continued)- 
MiiUTGAGES:  Parties,  nature,  form, 
rights  and  liabilities  of  mortgagor  and  niort- 
griiTpe.  n'^'^itrnment  of  the  equity  of  redemp- 
•:.ii.  .■i---i_-iinient  of  the  nuirfgage,  priority 
ef  in"itL:ii:<'S  and  other  conveyam-es.  regis- 
Iraiion,  discharge  of  a  mortgage. 


Chapter    X. 

EQUITABLE  ESTATES:  Statute  of  nses. 
classification  of  trusts, — express,  implied, 
resulting,  constructive, — incidents  of  equita- 
ble estates,  charitable  trusts. 

Chapter    XI. 

i:STATES  AS  TO  TIME  OF  EN.TOYMENT 
—FUTURE  ESTATES:  Reversions,  possi- 
bilities of  reverter,  remainders,  rule  in  Shel- 
ley's Ca.se,  future  uses,  springing  uses, 
shifting  uses,  executory  devises,  incidents 
of  future  estates. 

Chapter  XII. 

ESTATES  AS  TO  NUMBER  OF  OWNERS 
—JOINT  ESTATES:  Joint  tenancies,  ten- 
ancies in  common,  estates  in  coparcenary, 
estates  in  entirety,  estates  in  partnership,, 
incidents  of  joint  estates,  partition. 

Chapter    XIII. 

INCORPOREAL  HEREDITAMENTS: 
Easements,  creation,  classification,  inci- 
dents, destruction,  rights  of  way,  highways, 
light  and  air,  lateral  and  subjacent  sup- 
port, party  walls,  easements  in  water,  prof- 
its a  prendre,  rents,  franchises. 

Chapter    XIV. 

LEGAL  CAPACITY  TO  HOLD  AND  CON- 
VEY REALTY:  Infants,  per.sons  of  un- 
sound mind,  married  women,  aliens,  corpo- 
rations. 

Chapter   XV. 

RESTRAINTS  ON  ALIENATION:  Re- 
straints imposed  by  law.  restraints  in  favor 
of  creditors,  restraints  imposed  in  creation 
of  estate. 

Chapter    XVI. 

TITLE:  Acquisition  of  title  by  state  nnd  pri- 
vate per.son.s,  grant  from  state,  conveyan- 
ces, common-law  conveyances,  conveyances 
under  statute  of  uses,  modern  statiitory  con- 
veyances, registered  titles,  requisites  of 
deeds;  covenants  for  title,  seisin,  against 
incumbrances,  warranty,  further  assurance; 
estoppel,  adverse  possession,  accretion,  de- 
vise, descent,  judicial  jirocoss:  conveyances 
under  licenses,  under  dtiress;  tax  titles,  em- 
inent domain. 


1  VOL.     689  PAGES.     $3.75,  DELIVERED. 


WEST  PUBLISHING  CO.,  5t.  Paul,  Minn. 

CI  101a  (16) 


@v  l^anbBoog  of 
^^e  ^att?  of  ^eraone  anb  ©omeeftc  (Refa^ioue, 

(10g  nraffer  €.  itiffang. 


PART   I. 

HrSBAXD  AND  WIFE. 
Chapter    I. 

MARRIAGE:  Covering  definition  and  essen- 
tials; capacity  of  parties;  reality  of  con- 
sent; formalities  in  celebration;  annul- 
ment and  avoidance;  validating  acts;  con- 
flict of  laws,  etc. 

Chapter    II. 

PERSONS  OP  THE  SPOUSES  AS  AF- 
FECTED BY  COVERTURE:  Covering 
rights  inter  se;  crimes  and  torts  of  married 
women;  crimes  and  torts  as  between  lius- 
band  and  wife;  torts  against  married  wo- 
men: actions  for  alienation  of  affections; 
crim.  con.,  etc. 

Chapter  III. 

RKUITS  IN  PKorEHTY  AS  AFFECTED 
P.Y  COVER  ri" RE:  Covering  wife's  earn- 
ings; wife's  clioscs  in  action  and  in  posses- 
sion; wife's  chattels  real;  administration 
of  wife's  estate;  eiinitable  and  statutory 
separate  estate;  communily  property;  cur- 
tesy;   dower;    estates  by   the  entirety,   etc. 

Chapter  I"V. 

CONTRACTS,  COXVEY.WCES,  ETC., 
AND  QUASI-CONTRACTUAL  OBLI- 
OATIONS:  Covering,  inter  alia,  husband's 
liability  for  wife's  necessaries,  antenuptial 
debts,  and  funeral  expenses;  wife  as  a  sole 
trader;  wife  as  husband's  agent;  convey- 
ances, sales,  and  gifts  by  the  wife,  etc. 

Chapter  V. 

FIFE'S  EQUri'.M'.LK  AND  STATd'oUV 
SEPARATE  ESTATE:  Covering  ilieir 
natiue;  jus  disi)onendi:  power  to  charge  l)y 
contract,  etc. 

Chapter  VI. 

ANTENUPTIAL  AND  POSTNUPTIAL 
SETTLEMENTS:  Covering  the  subject 
generally,  in<  billing  marriage  as  a  consid- 
eration; the  statute  of  frauds;  validity 
against  creditors  and  purchasers,  etc. 

Chapter   "VII. 

SEPARATION  AND  Dl\(HM"i::  Coyerin;: 
agre<'inents  for  separation:  jurisdiction  to 
grant  divorce;  grounds  for  divorce;  lie- 
fenses  in  actions  for  divorce;  legislative  di- 
vorce, etc. 

PART  II. 
PAKFNT  AM)  CHILD. 
Chapter    VIII. 
Li;<;iTIM.\(Y.       ILPE(;iTLMA(JY.      A  N  I> 
AlXiP'riO.V:    (.'overiiig  b-iiimacy  of  cliil 
dren;  adoption  of  children;  status  ol'  ille-iii 
matt;  children. 


TABLE    OF    CONTENTS. 

Chapter    IX. 

DUTIES  AND  l.I  API  1.111  KS  OF  FAH- 
ENTS:  Maintename.  protection,  and  edu- 
cation of  diild;  allowance  out  of  child's 
estate;  child  as  parent's  agent;  parent's  lia- 
bility for  crimes  and  torts  of  child,  etc. 

Chapter    X. 

uKiirrs  OF  PARi:\Ts  and  of  chil- 

DIJIOX:  Right  to  custody:  service  aiiil 
earnings  of  child:  correction  of  child; 
emancipation  of  children;  action  by  parent 
for  injuries  to  child;  gifts,  contracts,  aiid 
conveyances  between;  advancements;  duty 
to  support  parent;    domicile  of  ehild,  etc. 

PART  III. 

GUARDIA.X  AND  WARD. 
Chapter    XI. 

GUARDIANS  DEFINllD  —  SELECTION 
AND  APPOINTMENT:  Covering  natural 
guardians:  testamentary  guardians:  statu- 
tory gtiarilians;  guardians  by  est'ii>ix-l; 
guiirdians  of  insane  pi'rsous;  guardians  sid 
litem,  etc. 

Chapter   XII. 

RIGHTS.  DUTIES.  AND  LIABILITIES  OF 
GUARDIANS:  Riglit  to  custody  and  serv- 
ices of  ward;  maintenance  of  ward:  change 
of  ward's  domicile:  management  of  ward's 
estate;  foreign  gitardians;  inventory  and 
accounts;  compensation  of  gttardian:  trans- 
actions between   guardian  and  ward,   etc. 

Chapter    XIII. 

T1:K.ML\AT1(>N  nv  (jrAKDI.VNSIIlP  — 
ENFORCING  <;UARDL\N'S  LIABILI- 
TY:   Covering  the  subject  generally. 

PART  IV. 

INFANTS.     PI:KSoXS     NON     COMPOTES 

MENTIS.    .\ND  ALIENS. 

Chapter    XIV. 

I.\'1".\.\"TS:  Covering  contracts  of  infants,  in- 
cluding ratification  and  disatlirmaiice;  lia- 
bilities for  necessaries,  etc.;  capacity  lo 
li()ld  <illi<-e.  lo  make  a  will,  and  as  ANitiK-ss- 
es;  liability  for  torts  and  crimes;  infantH 
as  jiarties  to  actions,  etc. 

Chapter    XV, 

niKsoxs     .\d.\     coMi'ori;s     Mi'.xris 

.\.ND  Al.lI'l.N'S:  Covering  insane  and 
dniiiken  persons,  their  contracts,  ilicir  liii- 
bility  for  torts  and  crimes  and  te-taii"  I'l- 
ary  capacity,  etc. 

PART  V. 

MA.^ii:i;  AM>  .<i;i;\'  ANT. 

Chapter    XVI. 

CK1:A'I'[0.\   AND    I'ER.MINATION  OF  RE 

l,.\TION:      Remedies    lor    bictch    of    .  ..n 
tr.'icl;    righiN  :itid  duties  .'ind   liabilities   inter 
se  and  as  lo  third  iiersoiis,  etc. 


CI  243 


I   \<n.i  >ii:. 


iH\) 


\<;i:s.    $:$. 


>i;i.i\  i;i;i:i» 


WEST   PUBLISHING  COMPANY.  ST.  PAUL.  MINN. 


(IT) 


(3n  t^  jEfOtnOocft  ^encs.) 


the  caw V." .  (B)cuu(oxB  attb  (§i»tntni6^t:a^or0 


By  Simon  Grecnkaf  groswell, 


Aotlior  «>f  "  Kleotricily," 
"I'alcut  Cases,"  eto. 


TABLE  OF  CONTENTS. 


Part  I.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 
Chapter   I. 

DEFINITIONS  AND  DIVISION  OP  SUBJECT:  Ex- 
ecutors and  administrators  defined;  analysis  of 
book. 

Part  II.— APPOINTMENT  AND  QUALIFICATIONS. 

Chapter  II. 

APPOINTMENT  IN  COURT:  Necessity  of  adminis- 
tration; necessity  of  appointment  by  court;  ju- 
risdiction; conciusiveness  of  decrees  of  probate 
courts,  etc. 

Chapter  III. 

PLACE  AND  TIME  OF  APPOINTMENT  AND  REQ- 
UISITES THEREFOR:  Place  of  appointment; 
property  necessary  to  give  jurisdiction;  time  limit 
for  application. 

Chapter  IV. 

WHO  MAY  CLAIM  APPOIXTMENT  AS  EXECU- 
TOR: Designation  in  will;  appointment  by  dele- 
gation; executor  of  executor;  non-assignability 
of  office. 

Chapter  V. 

WHO  MAT  CLAIM  THE  RIGHT  TO  ADMINISTER: 
Principle  which  governs  the  right;  order  of  pre- 
cedence; creditors;  preferences  among  kindred 
etc. 

Chapter  VI. 

DISQUALIFICATIONS  FOR  THE  OFFICE  OP  EX- 
KCUTOR  OR  ADMINISTRATOR:  Infants,  mar- 
ried women.  Idiots,  lunatics,  convicts,  corpora- 
tions; poverty  and  insolvency;  absolute  and  dis- 
cretionary incompetency,  etc. 

Chapter  VII. 

ACCEPTANCE  OR  RENUNCIATION:  Express  or 
implied  renunciation. 

Chapter  VIII. 

PROCEEDINGS  FOR  APPOINTMENT  OF  EXECU- 
TORS AND  ADMINISTRATORS:      In  general. 

Chapter  IX. 

SPECIAL  KINDS  OF  ADMINISTRATIONS:  Admin- 
istration cum  testamento  annexe;  dB  bonis  non; 
during  minority;  pendente  lite;  public  adminis- 
trator;   executor  de  son  tort,  etc. 

Chapter  X. 

FOREIGN  AND  INTERSTATE  ADMINISTRATION: 
validity  of  foreign  wills;  territorial  limit  of  va- 
lidity of  lettfTs;  principal  and  ancillary  adminis- 
tration;   conflict  of  laws;    comity,  etc 

Chapter  XI. 

JOINT  EXECUTORS  AND  ADMINISTRATORS:  Na- 
ture of  estate;  rights,  powers  and  liabilities;  rem- 
edies between,  etc. 

Chapter  XII. 

ADMINISTRATION  BONDS:  Covering  the  subject 
generally. 


Part  III.— POWERS  AND  DUTIES. 

Chapter  XIII. 

INVENTORY— APPRAISEMENT— NOTICE  OP  AP- 
POINTMENT:   Covering  the  subject  generally. 

Chapter  XIV. 

ASSETS  OF  THE  ESTATE:  What  are  assets;  fix- 
tures; emblements;  animals;  ownership  at  time  of 
death,   etc. 

Chapter  XV. 

MANAGEMENT  OF  THE  ESTATE:  Rights  and  lla^ 
bilities  of  executors  or  administrators;  collection 
and  investment  of  assets,  taxation,  etc. 

Chapter  XVI. 

SALES  AND  CONVEYANCES  OF  PERSONAL  OR 
REAL  ASSETS:  Covering  sales  in  general,  sales 
of  land  to  pay  debts,  power  to  mortgage,  etc. 

Chapter  XVII. 

PAYMENT  OF  DEBTS  AND  ALLOWANCES— IN- 
SOLVENT  ESTATES:  Covering  priority  of  dohts, 
widow's  allowance,  expenses  of  funeral  and  last 
illness,  costs  of  administration:  presentation  and 
allowance  of  claims,  insolvent  estates,  etc. 

Chapter  XVIII. 

PAYMENT  OF  LEGACIES:  Legacies  subordinate  to 
debts;  ademption  and  abatement  of  legacies; 
priority  between  legacies  and  contingent,  future 
or  unknown  debts;  payment  of  legacies.  Interest, 
etc. 

Chapter  XIX. 

DISTRIBUTION  OF  INTESTATE  ESTATES:  Order, 
time  and  mode  of  distribution;  rights  of  husband, 
widow  and  next  of  kin,  right  of  presentation, 
payment  of  distributive  share,  etc. 

Chapter  XX. 

ADMINISTRATION  ACCOUNTS:  Time  and  manner 
of  accounting,  charges  and  allowances  In  account; 
commissions  and  compensation,   etc. 

Part  IV.— TERMINATION  OF  OFFICE. 

Chapter  XXI. 

REVOCATION  OF  LETTERS— REMOVAL— RBSIO- 
NATION:    Covering  the  subject  generally. 

Part  v.— REMEDIES. 

Chapter  XXII. 

ACTIONS  BY  EXECUTORS  AND  ADMINISTRA- 
TORS: Power  to  sue  before  probate  or  grant  of 
letters;  survival  of  actions;  actions  in  personal 
and  representative  capacity,  etc. 

Chapter  XXIII. 

ACTIONS  AGAINST  EXECUTORS  AND  ADMIN- 
ISTRATORS: Survival  of  actions:  particular  lia- 
bilities; attac^hmcnt  and  garnishment:  judgments, 
executions  and  other  proceedings;  order  of  liabil- 
ity of  assets;  suits  on  bonds,  etc. 

Chapter  XXIV. 

STATUTE  OP  LIMITATIONS— SET-OFF:  General 
and  special  statute  of  limitations,  set-off,  etc 

Chapter  XXV. 

EVIDENCE  AND  COSTS:  Covering  the  subject 
generally. 


I  Vol.    696  Pages. 
$3-75.  Net,  Delivered. 
CI  395 


me$i  PuWi$bin9  Co.,  St.  Paul,  minn. 


(18) 


@  35mtb6oo6  of 

i^t  Bai»  of  (ptii>Cik  Covpovaiions. 

By  Wn.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  '"Conlracts." 


TABLE  OF  CONTENTS. 


Chapter   I. 

OP  THE  NATURE  OF  A  CORPORATION: 
Definitiou  and  creation;  limited  powers;  attri- 
butes and  incidents;  corporatioa  as  a  person, 
citizen,  etc. ;  kinds  of  corporations,  etc. 

Chapter  II. 

CREATION  AND  CITIZENSHIP  OF  CORPO- 
RATIONS: Covering  the  subject  general!}',  in- 
cluding power  to  create;  general  and  special 
laws;  ratification  of  claim  to  corporate  exist- 
ence; agreement  between  corporation  and  state 
— acceptance  of  charter;  agreement  between 
corp  )rators  and  corporation ;  purpose  of  incorpo- 
ration; corporate  name,  residence,  and  citizen- 
ship of  corporation ;  extension  of  charter ;  proof 
of  corporate  existence,  etc. 

Chapter  III. 

EFFECT  OF  IRREGULAR  INCORPORATION: 
Corporations  de  facto ;  estoppel  to  deny  corpo- 
rate existence;  liability  of  stockholders  as  part- 
ners. 

Chapter  IV. 

RELATION  BETWEEN  CORPORATION  AND 
ITS  PROMOTERS:  Liability  for  expenses  and 
services  of  promoters;  liability  on  contract  by 
promoters;  liability  of  promoters  to  corporation 
and  stockholders,  etc. 

Chapter  V. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS: Express  and  implied  powers;  con- 
struction of  charier;  power  to  hold  realty;  con- 
tracts and  conveyances,  etc. 

Chapter  VI. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued) :    The  doctrine  of  ultra  vires. 

Chapter  VII. 

POWERS  AND  LIABILITIES  OF  CORPORA- 
TIONS (Continued):  Responsibility  for  torts 
and  crimes ;  contempt  of  court. 

Chapter  VIII. 

THE  CORPORATIO.V  AND  THE  STATE: 
Charter  as  a  contract;  police  power  of  the  state; 
power  of  eminent  domain;  repeal  and  amiMid- 
ment  of  charter;  taxation  of  corporation. 


Chapter  IX. 

DISSOLUTION  OF  CORPORATIONS:  How  ef- 
fected; equity  jurisdiction;  effect  of  dissolu- 
tion, etc. 

Chapter  X. 

MEMBERSHIP  IN  CORPORATIONS:  Capital 
stock  and  capital;  nature  of  corporate  shares; 
certificates  of  stock ;  subscriptions  to  stock ;  re- 
lease and  discharge  of  subscriber,  etc.,  covei-ing 
the  subject  generally. 

Chapter  XI. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :  Right  to  inspect  books  and  papers;  right 
to  vote;  profits  and  dividends;  increase  of  cap- 
ital; preferred  stock;  watered  and  bonus  stock; 
action  by  stockholders  for  injuries  to  corpora- 
tion ;  expulsion  of  members,  etc. 

Chapter  XII. 

MEMBERSHIP  IN  CORPORATIONS  (Contin- 
ued) :    Covering  transfer  of  shares. 

Chapter  XIII. 

MANAGEMENT  OF  CORPORATIONS— OFFI- 
CERS AND  AGENTS:  Powers  of  majority  of 
stockholders;  by-laws;  stockholders' meetings; 
election  and  appointment  of  ofiBcers  and  agents: 
powers  and  liabilities  of  officers  and  agents;  re- 
moval of  officers  and  agents,  etc.,  covering  the 
subject  generally. 

Chapter  XIV. 

RIGHTS  AND  RE.MEDIES  OF  CREDITORS: 
Relation  between  creditors  and  the  corporation, 
coverinsr,  inter  alia,  property  subject  to  execu- 
tion ;  assets  as  a  trust  fund  for  creditors;  fraud- 
ulent conveyances;  assignment  for  benefit  of 
creditors;  preferences;  dissolution,  injunction, 
and  receivers;  relation  between  creditors  and 
stockholders,  covering,  inter  alia,  statutory  lia- 
bility of  stockholders;  contribution  between 
stocliholders,  etc. ;  relation  between  creditors 
and  officers,  covering  preferences  to  officers  who 
are  creditors;  statutory  liability  of  officers. 

Chapter  XV. 

FOREIGN  CORPORATIONS:  Covering  the  sub- 
ject generally. 

APPENDIX. 

The  logical  conception  of  a  corporation. 


I  Volume.     740  pages.     $3.75,  net,  delivered. 


West  Publishinjr  Co  ,  St.  Paul,  Minn. 


C1470 


(!:•) 


He  J^ornBooft  ^criee. 


(g  J5<:«nb6oo6  of 

t^t  £af»  of  ^ar^nere^ip 


QSg  n^iffiam  (Beorge. 


TABLE  OF   CONTENTS. 


Chapter   I. 

DEFIMTION  AND  ESTAIM.ISIIMKNT  OF 
RELATION:  Wlinl  const  initios  :i  luirtiuT- 
.shiir.  tests  of  intention:  sh:irinj.M>ivfif>^;  P™' 
meters  of  corporiitions:  defective  corpora- 
tion; delectus  iiersonaruni;  subpartnersliips; 
holding:  out,  etc. 

Chapter    II. 

RINDS  OF  PAUTXFUSIIII'S  AND  PAUT- 
NERS:  Classitication  of  i)artiuTsliii)s  and 
partners:  universal,  .general,  and  six'cial  part- 
nerships: limited  partnerships:  joini-stock 
companies:  niininji  iiartnerships;  trading 
and  uontrading-  partnerships,  etc. 

Chapter  III. 

CHARACTERISTIC  FEATURES         OF 

PARTNERSHIPS:  Legal  and  mercantile 
view  of  a  firm;  partnersliip  name:  partner- 
ship property;  partnership  capital;  shares  in 
partnerships,  etc. 

Chapter  IV. 

IMPLIED  RIGHTS  AND  LIABILITIES  IN- 
TER SE:  Participation  in  management; 
rights  and  powers  of  majority:  dut.v  to  ex- 
orcise care,  skill,  and  good  iaith:  right  to 
comiwte  with  firm:  compensation  for  serv- 
ices; interest  on  balances;  partner's  lien: 
division  of  profits,  etc. 

Chapter  V. 

ARTICLES  OF  PARTNERSHIP:  Purpose 
and  effect;  rides  of  ct)nsti'uction:  us\ia! 
clauses  in  arliclc^s.  etc.;  cov(>iing  the  subjeiM 
generally. 

Chapter  VI. 

RIGHTS  AND  LIABILITIES  AS  I'i ) 
THIRD  PERSONS:  Express  and  implied 
authority  of  i)artner  to  bind  firm;  |)articu- 
lar  powers:  liability  of  partners  to  third 
persons:  incoming  partners;  assumption  of 
debts;  rights  in  firm  and  separate  [iroperty. 
etc. 


Chapter   VII. 

ACTIONS  BETWEEN  I'ARTNERS:  Action 
on  partnership  claim  or  liability,  at  law,  in 
(>quity,  or  under  the  code:  actions  between 
firms  with  a  common  member:  actions  on 
individual  obligations:  equitable  actions  in 
general;  accounting  and  dissolution:  spe- 
cific iierform.anei';    iujnnetion;    receivers,  etc. 


Chapter    VIII. 

ACTIONS  BETWEEN  PARTNERS  AND 
THIRD  I'eRSONS:  Parties  in  actions 
by  and  against  ))artners;  effect  of  changes 
in  firm:  dis(iualification  of  one  partner  to 
sue;    action  in  firm  name,  etc. 


Chapter   IX. 

DISSOLUTION:  Causes  of  dissolution;  part- 
nerships for  a  definite  and  indefinite  time; 
causes  subject  to  stipulation;  causes  not  sub- 
ject to  stipidafion;  causes  for  which  a  court 
will  decree  a  dissolution:  consequences  of 
dissolution  as  to  third  persons  and  as  to 
jiartners. 

Chapter    X. 

LIMITED  PARTNERSHIPS:  Covering  the 
subject  exhaustively,  including,  inter  alia, 
definition  and  establishment  of  relation; 
general  and  special  members;  certificate; 
contribution  of  general  and  special  jiartners; 
name;  sign:  rights  and  liabilities:  wilh- 
(h'awal,  alteration,  and  interfeience;  insol- 
vency; termination  of  rel.ition:  change  from 
limited  to  general  liability;    actions,  etc. 


Chapter    XI. 

JOINT-STOCK  COMPANIFS:  Definition  and 
nature;  transfer  of  shares:  powers  of  mem- 
liers  and  officers;  rights  and  liabilities;  ac- 
tions, etc. 


I  Volume,  6i6  pages.     $3.75,  net,  delivered. 


West  Publishing  Co  ,  St.  Paul,  Minn. 

C1471  ^'-^O) 


(3n  tge  |5orn6ooft  §ttite.) 


(g  15an&6ooR  of 


(Bcjutig  (pfeabing. 


Author  of    "  Shipman's  Common-Law  Pleading." 


TABLE    OF    CONTENTS. 


Chapter   I. 

EQUITY  PLEADING  IN  GENERAL:  Cov- 
ering nature  and  scope  of  pleadings  in  eq- 
uity 

Chapter  II. 

PARTIES:  Giving  general  rules,  and  covering 
classification  of  parties  as  necessary,  proper 
Itut  not  indispensable,  formal,  and  parties 
with  separable  interests:  parties  complain- 
ant and  respondent;   joinder,  etc. 

Chapter  III. 

PROCEEDINGS      IN      AN      EQUITABLE 

SUIT:  Indicating  the  steps  usually  taken 
and  the  method  of  procedure,  as  the  bill, 
appearance,  proceedings  on  default;  the 
modes  of  defense,  by  disclaimer,  demurrer, 
plea,  or  answer;  the  replication;  interlocu- 
tory proceedings,  as  amendment,  injunc- 
tions, production  of  documents,  interven- 
tion; the  evidence,  hearing,  and  decree;  the 
correction,  reversal,  or  enforcement  of  de- 
crees, etc. 


Chapter  IV. 

BILLS  IN  EQUITY:  Covering  definition  and 
classification,  and  discussing  original  bills, 
and  bills  not  original,  with  a  summary  of 
the  general  rules  covering  the  bill,  etc. 

Chapter  V. 

THE   DISCLAIMER:    Definition,   nature,  and 

use. 

Chapter  VI. 
DEMURRER:    Definition;   form  of  demurrer, 

and  grounds  therefor;    orders  sustaining  or 

overruling  demurrer,  etc. 

Chapter  VII. 

THE  PLEA:  Definition,  nature,  and  office  of 
pleas,  grounds  for  pleas,  their  form,  support- 
ing answers,  etc. 

Chapter  VIII. 

THE  ANSWER:  Nature  and  office,  substance 
and  effect,  of  the  answer,  and  the  character- 
istics tln-reof. 

Chapter  IX. 
THE  REPLICATION. 


644  PAGES.     $3.75.  NET,   DELIVERED. 


WEST  PUBLISHING  CO.,  St.  Paul,  Minn. 

llt;;;(j  (21) 


(Zic  JB<5rn6ooil  §cxm,) 


(^  ganb6ooft  of 

CPe  San)  of  (Et)ibence* 

Author  of  "Common-Law  Pleading,"  etc. 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

INTRODUCTORY:    Definitions;    origin,  place 

and  function  of  the  law  of  evidence,  etc. 

CHAPTER  II. 

JUDICIAL  NOTICE:  The  doctrine  in  general; 
facts  which  may  or  must  be  noticed. 

CHAPTER  III. 

QUESTIONS  OP  LAW  AND  QUESTIONS 
OF  FACT:  Definitions;  province  of  court 
and  jury. 

CHAPTER   IV. 

BURDEN  OF  PROOF:  Burden  of  proof  never 
shifts;  burden  of  proceeding  may  shift;  ver- 
dict, etc. 

CHAPTER   V. 
PRESUMPTIONS:     Presumptions   as  rules   of 
law;    prima   facie,  conclusive,    spurious,   and 
conflicting  presumptions. 

CHAPTER   VI. 

ADMISSIONS:  Direct  and  indirect  admissions; 
admissibility;  civil  and  criminal  cases;  ef- 
fect of  admission,  etc. 

CHAPTER  VII. 

CONFESSIONS:  Defined;  voluntary  or  under 
influence;  may  be  explained;  evidence  there- 
from, etc. 

CHAPTER   VIII. 

MATTERS  EXCLUDED  AS  UNIMPOR- 
TANT, OR  AS  MISLEADING,  THOUGH 
LOGICALLY  RELEVANT:  Logical  and  le- 
gal relevancy,  rule  excluding;  classification 
of  matter;  proof  of  diverse  matters  consid- 
ered. 


CHAPTER   IX. 

CHARACTER:  General  rule;  when  material; 
how  proved,  etc. 

CHAPTER   X. 

OPINION  EVIDENCE:  Matter  of  opinion  dis- 
tinguished from  matter  of  fact;  general  rule; 
exceptions;  matters  forming  subject  of  ex- 
pert opinion,  etc. 

CHAPTER  XL 

HEARSAY:  General  rule;  exceptions;  real 
and  appaient;  classes  of  statements  admit- 
ted because  of  tlie  difficulty  of  other  proof. 

CHAPTER   XII. 

WITNESSES:  Rules  excluding  witnesses;  per- 
sons excluded;  privilege  distinguished  from 
disqualification;    privileged   persons. 

CHAPTER   XIII. 

EXAMINATION  OF  WITNESSES:  Ordinary 
method;  refreshing  memory;  direct  and 
cross  examination;  leading  questions;  im- 
peaching witness,  etc. 

CHAPTER  XIV. 

WRITINGS:  B<^st  evidence  rule;  production  of 
documents;  authentication  of  documents; 
proof  of  handwriting;  evidence  affecting  the 
contents  of  documents,  etc, 

CHAPTER   XV. 

DEMURRERS  TO  EVIDENCE:  Definition; 
when  joinder  compelled;  final  form,  etc. 


1  vol.    480  pages.    $3.75,  net,  delivered. 


WEST  PUBLISHING  CO.,  5t.  Paul,  Minn. 


C1837 


(22) 


(€5e  ^otn$oo&  §txkB,) 


(^  ganb6ooft  of 

Cpe  £an)  of  (Uegfigence^ 


TABLE    OF   CONTENTS. 


Chapter  I. 

DEFINITION  AND  ESSENTIAL  ELE- 
MENTS :  Considering  also  proximate 
cause ;  efficient,  intervening,  or  co-operating 
cause,  etc. 

Chapter   H. 

CONTRIBUTORY  NEGLIGENCE:  Defini- 
tion and  general  rule  ;  degree  of  care  ;  as- 
sumption of  risk  and  legal  status  of  plain- 
tiff ;  plaintiff's  negligence ;  negligence  of 
third  persons ;  imputed  negligence ;  phys- 
ical condition  as  an  element ;  evidence, 
pleading,  and  questions  of  fact. 

Chapter   III. 

LIABILITY  OF  MASTER  TO  SERVANT: 
Duty  of  master,  as  to  appliances,  selecting 
servants,  rules,  etc. ;  limitation  of  master's 
duty ;  ordinary  risks,  known  dangers,  fel- 
low servants ;  concurrent  and  contributory 
negligence. 

Chapter   IV. 

LIABILITY  OP  MASTER  TO  THIRD  PER- 
SONS :  Relationship ;  independent  con- 
tractor ;  willful  torts  of  servants,  and  inde- 
pendent torts. 

Chapter   V. 

COMMON  CARRIERS  OF  PASSENGERS: 
The  relation  of  passenger  and  carrier ;  ter- 
mination of  relation  ;  who  are  passengers ; 
the  contract,  ticket,  compensation,  etc. 

Chapter   VI. 

CARRIERS  OF  GOODS:  Definition;  liabili- 
ty for  loss  or  damage ;  liability  for  delay ; 
contracts  limiting  liability  in  spet-ial  states; 
limiting  time  and  manner  of  making  claims; 
construction  of  limiting  contracts ;  actual 
notice;  special  classes  of  goods,  as  live 
stock  and  baggage ;  beginning  and  termina- 
tion of  liability  ;    excuses  for  nondelivery. 


Chapter   VH. 

OCCUPATION  AND  USE  OF  LAND  AND 
WATER  :  Duties, — general  rule  ;  lateral 
support ;  dangerous  premises  ;  landlord  and 
tenant,  and  condition  of  rented  premises ; 
water  courses  ;  dams ;  obstruction  of  navi- 
gable streams,  etc. 

Chapter    VIII. 

DANGEROUS  INSTRUMENTALITIES : 

Railroads  ;  degree  of  care  exacted  ;  signals  ; 
care  required  of  persons ;  collisions  with 
persons  and  with  animals ;  fires ;  inten- 
tional, accidental,  and  railroad  fires;  ani- 
mals ;  communicating  disease  ;  firearms,  ex- 
plosives, poisons,  etc. 

Chapter   IX. 

NEGLIGENCE  OP  ATTORNEYS,  PHYSI- 
CIANS,     AND      PUBLIC      OFFICERS: 

Negligence  of  attorneys ;  damage  essential 
to  liability  ;  negligence  of  physicians  ;  bur- 
den of  proof,  evidence,  pleading,  etc. ;  negli- 
gence of  public  and  governmental  officers, 
ministerial  officers,  sheriffs  and  constables, 
notaries  public,  clerks  of  court,  and  registers 
of  defeds. 

Chapter   X. 

DEATH  BY  WRONGFUL  ACT  :  Right  of  ac- 
tion ;  instantaneous  death,  proximate  cause 
of  death,  beneficiaries ;  damages ;  pleading 
and  evidence;  limitation  of  commencement 
of  action. 

Chapter   XI. 

NEGLIGENCE  OF  MUNICIPAL  CORPO- 
RATIONS :  Public  and  private  corpora- 
tions ;  right  of  action ;  liability  for  inju- 
ries;  alteration  of  grades;  acts  of  officers 
or  agents;  acts  ultra  viros;  judicial  or  leg- 
islative duties;  conflagrations  and  destruc- 
tion by  mobs  ;  public  health  and  sanitation  ; 
quasi  municipal  corporations. 


1  VOL.     634  PAGES.     $3.75.  DELIVERED. 


WEST  PUBLISHING  CO., St.  Paul,  Minn. 


0278>5-l 


(•_>:?) 


^^e  ^oxnioo^  ^trks. 


T 


HE   Albany    Law   Journal,  in  a  recent  review  of  one  of  the  volumes  of  the 
Hornbook   Series,  writes  : 


"So  much  has  been  written  upon  the  merits  of  the  Hornbook  Series  that  anything  additional 
may  seem  superfluous;  yet  we  cannot  refrain  from  commenting,  in  passing,  upon  the  general  utility, 
merit,  and  scope  of  the  series.  *  *  »  The  series  is  of  untold  value  to  the  practicing  lawyer, 
enabling  him  to  find  and  refresh  his  mind  in  an  instant  upon  any  fundamental  principle  or  variation 
therefrom  of  which  he  may  be  in  doubt,  and  furnishing  an  ever-ready  and  convenient  digest  of  the 
law." 

This  emphasizes  the  fact,  which  has  also  been  practically  recognized  by  the 
members  of  the  bar  who  have  examined  the  volumes  issued  under  this  name,  that, 
although  low  in  price,  they  are  not,  in  consequence,  cheap  books.  They  are  elemen- 
tary in  the  sense  that  they  deal  with  the  elementary  branches  of  law,  but  they  are 
not  by  any  means  elementary  in  the  sense  that  they  fail  to  give  the  compre- 
hensive handling  which  the  practitioner,  as  distinguished  from  the  law  student,  re- 
quires. In  planning  the  style  and  character  of  this  series,  the  controlling  idea 
was  that  any  principle  of  law  could  be  stated  in  simple  and  intelligible  terms,  if  the 
man  who  made  the  statement  understood  the  principle,  and  knew  how  to  express 
himself.  It  was  to  some  extent  an  attack  upon  the  old  theory  that  a  certain  amount 
of  obscurity  in  a  legal  document  heightened  the  effect  of  learning.  It  was  main- 
tained, instead,  that  any  legal  principle  could  be  stated  in  simple  and  intelligible 
terms,  and  each  separate  branch  of  the  law,  if  carefully  studied  with  this  in  view, 
could  be  mapped  out  so  that  the  fundamental  principles  involved  could  be  shown  in 
an  orderly  sequence,  and  in  their  relation  to  each  other.  The  soundness  of  the 
theory  has  been  shown  by  the  success  of  the  Hornbook  Series.  The  several  vol- 
umes have  been  prepared  by  different  authors,  carefully  chosen  from  the  field 
of  legal  writers,  with  the  object  of  securing  thorough  and  expert  treatment  of  the 
particular  subject  assigned  in  each  instance.  The  method  of  presentation  was  at  first 
considered  a  novel  one,  but  has  now  become  so  well  known,  through  the  seventeen 
works  issued,  that  the  Albany  Law  Journal  could  refer  to  it  in  the  terms  quoted  at 
the  beginning  of  this  notice.  The  books  have  been  found  so  exact  in  statement,  so 
convenient  in  arrangement,  and  so  unmistakably  clear  in  style,  that  they  have  been 
adopted  as  the  basis  of  instruction  in  over  seventy  law  schools.  At  the  same  time, 
they  have  been  found  by  practitioners  to  be  exactly  the  kind  of  book  that  a  prac- 
titioner needs  to  have  on  his  desk  for  current  reference.  He  presumably  knows 
the  law,  yet  he  often  desires  to  refresh  his  memory  regarding  some  special  branch 
before  he  takes  up  a  case  involving  questions  relating  to  it,  and  for  that  purpose 
the  arrangement  of  black-letter  paragraphs  for  the  statement  of  principles  is  pecul- 
iarly convenient.  At  the  same  time,  the  exceptions  and  modifications  of  these 
principles  are  stated  in  a  different  type,  so  that  it  is  possible  for  him  to  go  into  de- 
tails of  any  question  when  he  desires  to  do  so.  The  authorities  are  grouped  in 
notes  at  the  foot  of  the  page,  and  their  completeness  is  evidenced  by  such  testi- 
mony as  the  following: 

"I  found  upon  page  58  of  this  small  volume  [Clark's  Criminal  Law],  in  a  small  compass,  a 
statement  of  the  divergent  views,  and  a  collation  of  the  authorities  pro  and  con  [on  a  certain  ques- 
tion], all  contained  in  a  more  condensed  and  satisfactory  form  than  I  have  found  in  any  other 
treatise."— Hon.  J.  M.  Dickinson,  Asst.  U.  S.  Atty.  Gen. 

"I  found  in  Clark's  Criminal  Procedure,  under  '  Jurisdiction,' authorities  regarding  the  ques- 
tion of  asportation,  for  which  I  had  on  a  previous  occasion  spent  months  of  patient  search.  Fetter 
on  Equity  has  also  already  paid  for  itself  many  times  over." — U.  S.  G  Pitzer,  Prosecuting  Attorney, 
Martinsburg,  W.  Va. 

C1328-6  (24) 


I 


UNIVERSITY  OF  CAUFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


JUL  1  9  1975 


PSD  1916     8/77 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  821  088    2 


